STATE OF HLMACHAL PRADESH versus SURINDER MOHAN AND ORS.

STATE OF HlMACHAL PRADESH v.

SURINDER MOHAN AND ORS.

FEBRLARY 7, 2000 [K.T. THOMAS AND M. B. SHAH, JJ.j

Crimi11al Procedure Code, 1973 .

Sectiol!S 154 to 176 and 2()(}--Cross-exami11ation--Right of-At the time of i11vestigatio11 or i11quiry accused does not have a11y right to cross-ex ami11e the wit11ess.

Sectiol!S 306(4) (a) a11d 465- -Te11der of pardo11- -Cross-exami11atio11 of Approver-Accused failed to raise plea to cross-exami11e the approver before or after the committal of case to the Sessions Court-Did not object to approver's exami11atio11 and cross-examination during the uial--But raised such plea at the stage of fi11al arguments-Contended further that 1w11-ex-amination of approver by the accused amounted to no11--compliance of provisions of Section 306(4)(a) which vitiated the committal order and the triaHleld, such contention cannot be raised for the first time at the stage of final arguments and hence, trial not vitiated-Provisions of Sectiun 465 attracted.

Section 306(4)fa}-S.:upe of-Not couched i11 ma11dato1y frnn---lvon-examination of accuud by the approver would not vitiated the uial.

Respondents were tried for offences punishable under Sections 302, 380, 457, 120-8 read with Section 34 of Indian Penal Code, 1860 by the Additional Sessions Judge.

According to the prosecution, one 'S' became an approver and his statement was recorded by the Chief Judicial Magistrate after granting him pardon on the condition that he would make true disclosure of the offence. But at that stage the remaining accused were not asked to cross-G examine him. Formal challan was submitted before the Magistrate and the case was committed to the Sessions Court. During the trial approver was examined and cross-examined. The witnesses for defence were examined. Thereafter, when the final arguments were heard, contention was raised for the first time by the accused that the procedure prescribed under 659

Section 306(4)(a) of the Code of Criminal Procedure was complied with as statement of the approver was not recorded by the Magistrate during the committal proceedings and, therefore, the trial was vitiated. The Addition-al Sessions Judge acquitted the <1ccused. The appellant went in appeal. High Court dismissed the appeal on the ground of non-compliance of the provisions of Section 306( 4)(a) of the Code. Hence this appeal.

Allowing the appeal, this Court

·HELD : 1.1. At the time of investigation or inquiry for the offence triable by Ses~ions Court accused persons have no right to cross-examine the approver and non-examination of the approver at that stage would not vitiate the trial. The right to cross-examination would arise only at the time of trial. Under Section 200 of the Code of Criminal Procedure also when the Magistrate before issuing process holds the inquiry, accused has no right to be heard, and therefore, the question of cross-examination does not arise. Further, when the person to whom pardon is granted, is ex-D amined but is not offered for cross-examination then there is no question of any prejudice caused to the accused. [ 667 -F-G]

Chief Judicial Magistrate, Trivandrnm, (1988) Cr.LJ. 812, approved.

A. Devendran v. State of Tamil Nadu, [1997] 11 SCC 720 and Suresh Chandra Bahri v. State of Bihar, [1995] Suppl. I SCC 80, distinguished.

Uravakonda Vijayaraj Paul v. The State & Ors., [1986] Crl.LJ. 2104, overruled.

Kalu Khoda v. State, AIR (1%2) Guj. 283 and Sa11jay Ciwtdili \. l'11ior1 of India, AIR (1978) SC 514, referred to.

1.2. In the instant case during the final arguments in the Sessions

Court contention was raised for the first time that procedure prescribed under Section 306(4)(a) of the Code of Criminal Procedure WJs not complied with as the statement of the approver was not recorded by the Magistrate during the committal proceedings which vitiated the trial. Acceptance of this objection would only promote technical plea which would adversely affect dispensation of justice. In such circumstances, provisions of Section 465 of the Code are attracted which provides that the finding or sentence passed by the Court cannot be reversed by reason of error in order, judgment or other proceedings before or during the trial

of in any inquiry or other proceedings under the Code, unless in the

opinion of the Court such failure of justice has in fact been occasioned thereby. When such failure of justice has been occasioned the Court shall have regard to the fact whether the objection could have been raised at an earlier stage in the proceedings. [671-E-H]

1.3. Before or after the case was committed to the Sessions Court, accused did not raise any objection that they were not permitted to cross-examine the approver, nor did they contend so when the approver was examined and cross-examined during the trial. Therefore, at the stage of final arguments, accused cannot raised the said contention. Further after cross-examining the approver in detail, there is no question of failure of justice nor any prejudice being caused to the accused on account of such omission. 1672-B I

1.4. It is not correct to state that Section 306(4)(a) of the Code of Criminal Procedure is couched in mandatory term by using the word 'shall" which indicates that if there is breach of the said mandatory provision further trial would be vitiated. By not examining the approver, the trial would not get vitiated. [672-C-D]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 111 of 2GOO.

From the Judgment and Order dated 2.l,98 of the Himachal Pradesh High Court in Cr!. A. No. 460 of 1990.

Anil Soni and M&. Meenahhi Arora for the Appellant.

R.D. Upadhyay, Girdhar G. Lpadhayay, Syed Ali Ahmed, Syed Tanweer Ahmeed and K.L. Gautam for the Respondents.

The Judgment of the Court wa& delivered by

SHAH, J. Leave granted.

The respondents were tried for offences punishable under Sections 302, 380, 457, 120-H read with Section 34 IPC by the Additional Sessions Judge (I), Kangra at Dharamshala in Sessions Case No. 8 of 1988 and wcre acquitted for the said offences by order dated 8th May, 1990. The State preferred Criminal Appeal No. 460 uf 1990 before the High Court of

662 'iUPREME CO CRT REPORTS

[2COO] l S.C.R.

Hirnachal Pradesh. The appeal was dismissed by judgment and order dated 2.1.1998 solely on the ground that the Chid Judicial Magistrate had failed to comply with the mandatory directions contained in clause (a) of sub-section ( 4) of Section 306 Cr.P .C. as no statement of approver was recorded by the Chit:f Judicial Magistrak during the committal proceed-B ings, which vitiates the committal of the accused persons to Court of Session and consequ~ntly the trial by the Sessions Judge.

Before deaiing with the question of law arising in this appeal, we would state in nutshell the prosecution version. It is the say of the prosecu-tion that Dr. Kc;wal Krishan was medical practitioner having roaring practice in village Gummer. Accused Surinder Mohan was resident of the same village ar was posted as compounder in civil dispensary, Jawalamukhi. BL sides his official duties he was also engaged in private medical practice at his village and was assisted by his wife. Because of the roaring practice Jf Dr. Kewal Krishan, Surinder Mohan was having malice and he wanted to do away with the life of Dr. Kewal Krishan. It is also the case of the prosecution that Surindcr Mohan gave threats to Dr. Kewal Krishan to do away with his life and for this kttcr was si;:nt through his sister's son Ravindcr Kumar (PW14). It is further say of the prosecution that on 24th March 1988 at 10 p.m. Sandeep Kumar (PW 29) accused who later turned as an approver was going to attend 'Jagrata' at Biru Chaudhary's residcnc.: at village Dchrian. When he could reach near the goveramem Ji;p..:n,ary, Ciumme1, h~ CaJ11c across Surindcr Mohan and Biru Ram and at lhal time Surincler Mohan was having his scooter. Surinder Mohan asked Sandeep Kumar as to where he was going; Sandecp Kumar apprised him about his going to attend the 'Jagrata'; Accused Surindcr Mohan told him that he had gone to attend one Nirmala Devi who was seriousiy ill and unfortunately the medicines which were required for her treatment were not with him. He therefore requested Sandeep Kumar that he should call Dr. Kewal Krishan as the required medicines were available with him. For this purpose accused Surinder Mohan repeatedly requested and stated that life of Nirmala Devi was at pt:ril and therefore he should hdp. As Sandeep Kumar agreed, Surinder Mohan took him on his scooter and alighted him near shop of Kedar Nath (PW16). Sandeep Kumar then:aftcr called upon Dr. Kewal Krishan and requested him to accompany for giving treatment to Nirmala Devi. Hardly, Sandeep Kumar and Dr. Kewal Krishan could cover the distance of 300 yards, Surinder Mohan met them along wifa the accused Biru Ram. It is further

STATE v. SURINDERMOHAN [SHAH,J.j

allt:ged that when they could cover distance of 100 yards further, other accused Shashi Pal and Amar Singh also met them. Thereafter when they reached near the government dispensary, Ghumrner, accused Surinder Mohan and Biru Ram pounci:d upon Dr. Kewal Krishan. Surinder Mohan gagged the mouth of Dr. Kewal Krishan with pieci: of cloth and tried to push him towards the nearby Nallah. Accused Amar Singh and Shashi Pal came from behind and thi:reafter Dr. Ki:wal Krishan was draggt:d about 10 stt:ps downwards. At that stage, Biru Ram attacked with knife ( chhura) and on receiving the stab injury, Dr. fell on the ground. Subsequently, accused Surinder Mohan asked Sandeep Kumar as to who othi::r pt:rson was in the room of doctor. After stating that Vijay Kumar was in the room and he was knowing everything, Sandi:ep Kumar cursed Surindi:r Mohan as to why he was cheating and stated that ht: would reveal the entire episode to his fathi:r. Surinder Mohan assured him to pay Rs. 5,COO, but ht: did not submit to his wishes and went on shouting. Then Surinder Mohan attacked Sandeep Kumar with knife, but with great difficulty he ran away from the spot. At that stage also, accused persons and Biru Ram attacked upon him with knife which hit him on his back. With great difficulty he reached his house and after cleaning the blood from his person he silently went to his room and did not disclose anything regarding the incident to anybody. It is his further say that on the next morning when he went to answer the call of nature near the Nallah, ht: noticed the n:d colour of water and also the dead body of Dr. Kewal Krishan in the bushes.

It is also the prosecution version that on the next morning PW 11 Vipin Kumar made report to the police that the shop of Piare Chand and the residence of Dr. Kewal Krishan where doctor and his room mate Vijay Kumar used to sleep were lying open and no one was seen at their respective cots and that the dead body of Vijay Kumar was lying in the nearby pasture land. On receiving this information FIR for offence punish-able under Section 302 was registered. On the same day, dead body of Dr. Kewal Krishan was found. After investigation, Sandeep Kumar was ar-rested on 26th March 1988, accused Biru Ram, Amar Singh, Shashi Pal were arrested on 27th March 1988 while accused Surinder Mohan was arrested on 28th March 1988. On 8th June 1988 Sandeep Kumar moved an application from the jail expressing his intention to make true disclosure of the facts in relation to the murder of Dr. Kewal Krishan and Vijay Kumar as he was burdi:ned with guilt. After completing the formalities and recording the statement, the Chief Judicial Magistrate granted pardon to

(2000] l S.C.R.

Sandeep Kumar. The case was committed to the Court of Session on 4th August, 1988.

P.W. 33, Sh. J.M. Barowalia, Chief Judicial Magistrate has deposed bdore the Court that on 9.6.1988 he received application from Sandeep Kumar undertrial through Superintendent Jail. On that application, notice was issued to PP a~; well as SHO, Jawalamukhi and tht: date was fixed on 13.6. 1988. Sandeep Kamar was produced bdore him and he was explained by him that he was under no obligation to make any statemt:nt and if he make~ the stak'llent. it can be used against him. The matter was adjourned to 15.6.1988 and thereafter on 15.6.88 in presence of APP, RS Sharma, his statement was recordt:d after giving him further half-an-hour to think what statement he wanted to make. Sandeep Kumar was further given time of one hour and thereafter at 3.30 p.m. after recording his statement, he tendered pardon on the condition of his making full and true: disclosure: of the circumstances within his knowledge relating to the offence. The state-D ment of Sandet:p Kumar is also produced on record al Ext. PW,'2.It was the conti::ntion of the learned counsel for thto accused bt:fore the High Court that the statemt:nt of approver Sandeep Kumar was recorded by the Chief Judicial Magistrate on 15.6.1988 after granting him pardon on the condition that he would make true disclosun: of tht:. incidt:nt. But, on that datt:, challan was not filed bdore the CJ M and other accused were also not summoned to enable thtm to cross examine Sandet:p Kumar, and therefore, stakmcnt of the approver cannot be treated as :;tat..:ment rernrJcJ by th~ commott'<l cnmt under S1-c~iun 306( 4) C:• f'.C. T!i;,; H1r.;h Court hdd thal thl prnscculion ha5 tu n.~.mine the approver bdnre th.: committal court as provided under wb-Scction (4) of Section 306 lr. P.C. which will be his examination-in-chief and the accused person would have right to cross-examim: him. Therefore, statement recorded by the Chief Judicial Magistrate before firing cf the challan in his court without sum-moning the accused person was not statement recorded under Section 306(4) Cr.P.C. As the statemt:nt of approver was not recorded accordingly by the Chief Judicial Magistrate during the committal proceedings, it vitiates the committal of the accused persons to the Court of Session and consequently their trial by the Sessions Judge. The High Court further observed that had the said defect been pointed out during the course of trial, the Court would have remanded t!it: matter to the Chid Judicial ~agistrate for holding committal proceedings afresh by recording st,ate-

ment of Sandeep Kumar as providta under Section 306(4). This course cannot be adopted since the offence was committed on 24th March, 1988 and the respondtnts were acquitted on 8th May, 1990 and therefore retrial afresh will not be in the interest of justice and fair play. ln view the aforesaid findings, Lhe Court has not considered the other evidence led by the prosecution.

In this appeal, learned counsd for the State submitted that :

(1) Section 306 (4) Cr.P.C. nowhere provides that

(a) approver's evidence cannot be recorded on the date or prior to submission of the charge sheet;

(b) the accused is required to be summoned before recording the statement of the approver; and

(c) that accused should be permitted to cross-examine the ap-D prowr.

(2) ln any case under Section 465 Cr. P.C., after trial accused ought not to have been permitted to raise the contention that then: was such an omission in recording the statement of approver.

The lc::arned counsel next contended that the decision in A. Devendran V. State of Tamil Nadu, [1997] ll sec 720 nowhere lays down that while recording the evidence of the approver, if some irregularity is committed it would vitiate the trial. For the decision in Suresh Chandra Bahri v. State of Bi/Jar, (1995) Suppl. 1 SCC 80 it is pointed out that error of not recording the evidence of the approver was rectified by the Sessions Court by remitting it before trial to the Magistratt: for recording the evidence of the approver and hence, the Court has held that trial was not vitiated. It is, therefore, submitted that some of the observations made therein an: obiter.

As against this, learned counsel for the respondents submitted that this Court has repeatedly interpreted Section 306(4) Cr.P.C. and held it to be mandatory and therefore its non-compliance vitiates the committal order as well as the trial. For this purpose, he placed reliance on the decision of this Court in A. Deve11dra11 v. State of Tamil Nadu, [ 1997) 11 sec no.

[2000] 1 S.C.R.

666 SVPREME COURT REPORTS

For considering the rival contention~ raised by learned counsel for the parties, we would first refer to the relevant part of Sections 306 and 307 which is a5 under :-

"306. Te11der of pardon tu accomplice.- (!) With view to obtaining the evidence of any person supposed to have been direct!y or indirectly concerned in or privy to an offence to which this 5ection applies, the Chief Judicial Magistrate or Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender pardon to such person on condition of his making full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commis-sion thereof.

(2) ........ .

(3) ....... .

( 4) Every person accepting tender of pardon made under sub-section (1) -

(a) shall be examined as witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) ..........

307. Power to direct tender of pardon.- At any time after commit-ment of case but before judgment is passed, the Court to which the commitment is mad1~ may, with view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender pardon on the same condition to such person."

From the aforesaid Section 306 it can be stated that-

(1) the purpose of the Section is to obtain the evidence of any person supposed to have been din:ctly or indirectly con-cerned in or privy to an offonce 'during investigation, inquiry or trial';

(2) the Chief Judicial Magistrate or Metropolitan Magistrate is empowered to tender pardon to such person 'at any stage of investigation or inquiry into or the trial of the offence';

(3) the condition for tender of such pardon is that the person is to make full and true disclosure of the whole circumstances within his knowledge relating to the offence;

( 4) person accepting pardon under sub-section ( 1) is to be 'examined' as witness in the court of Magistrate taking cognizance of the offenct: and in subsequent trial, if any.

(5) Further, if the case is committed for trial to the Court of Sessions, Section 307 empowers the Sessions Court trying the case to tender pardon on the same conditions to such person before the judgmi::nt is passed.

From the aforesaid· ingredients, it is abundantly clear that at the stage of investigation, inquiry or trial of the offence, the person to whom pardon is to be granted, is to be examined for collecting the evidence of person who is directly or indirectly concerned in or privy to an offence. At the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross-exarnination would arise only at the timt: of trial. During the course of investigation by the Police, question of cross-examination by the accused does not arise. Similarly, under Section 2CO Cr.P.C. when the Magistrate before taking cognizance of the offence, that is, before issuing process holds the inquiry, accused has no right to be heard and, therefore, the question of cross-<-xamination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for cross-examination and thereafter during trial if he is examined and cross-examined then there is no question of any prejudice caused to the accused. In such cases, at the most accust:d may lose the chance to cross-examine the approver twice, that is to say, once before committal and the other at the time of trial.

On the question of examination different views are expressed by the

High Courts. The High Court of Andhra Pradesh in Uravako11da Vijayaraj Paul v. The State a11d Others, (1986) CrL L.J. 2104 had held that mere recording of the statement of an approver does not amount to examination as witness unless the accused are given an opportunity to cross-examine tht: approver and that the provision of Section 306( 4) of the Cr.P.C. is mandatory. The Court relied upon the decision of Gujarat High Court in Kalu Khoda v. State, AIR (1962) Guj. 283, wherein the Court interpreted Section 337 of the (Old) Cr.P.C. which is analogous to Section 306( 4) of Cr.P.C. As against this, Kerala High Court in Chief Judicial lvfagistrate, Trivandmm (1988) Crl.L.J. 812 has observed that examination under Sec-tion 306( 4) would be even before issuing process and at that stage no inquiry is involved and accused wiII be nowhere in picture, therefore, there is no question of accused being permitted to cross-examine the approver at that stage and ht: has no right to participate in that examination.

In the present case, the Hi1¥i Court has relied upon the dt:cision in Sanjay Ga11dhi v. Unio11 of India,. AIR (1978) SC 514. [n the said case contention was raised that accused wishes to cross-examine the Y.itncsses for the prosecution and to argue that no prim acie case has been admit-tedly made out for commitment. It was submitted that to cross-examine the approvt:r, tht: accused was required tu pursue, scan and scrutinise the papt:rs produced by the police and, tht:refore, committal proceedings be stayed. In that context the Court in the opt:ning part of the judgment observed :-

"~o party to criminal trial has vested right in slow motion justice since the soul of social justice in this area of law is prompt trial followed by verdict of innocence or sentence. Since fair trial is not limping hearing, we view with grave concern any judicial insuucience which lengthens litigation to limits of exasperation ..... "

The Court further held that the scope of committal proceedings is limited to merely ascertaining whether the case, as disclosed in the police report, involves an offence triable exclusively by the Court of Session. The Court thereafter observed :-

''We have heard counsel on both sides and proceed to elucidate certain clear propositions under tl:te new Code bearing upon the committal of cases where the offonce is triable exclusivdy by the Court of Session. The Committing Magistrate in such cases has no power tu discharge the accused. Nor has he pow..:r tu take oral

evidt:nce save where specific provision like;; S.306 enjoins. From this it follows that the argumt:nt that the accused has to cross-ex-amine is out of bounds for the Magistrate, save in !ht: case of approvers. l'<o examination-in-chief, no cross-examination."

In A. Deve11dra11 's case (Supra) this Court considered the qut:stion as to whether non-compliance of Sec. 306(4)(a) of the Code on account of non-examination of an approver as witm:ss after granting him pardon would vitiate the entire proceeding. In that case, it was contended that the object and purpose engrafted in clause (a) of sub-section ( 4) of Section 306 is to providt: safeguard to the accused who can cross-examine even at the preliminary stage on knowing the evidence of the approver against him and can impeach the said tt:stimony when the approver is examined in court during trial. This Court, dealing with the said contention, ht:ld that combined reading of sub-section ( 4) of Section 306 would make it clear that in case exclusivdy triable by the Sessions Court if pardon is tendered to an accused and he is taken as an approver before commitment then compliance of sub-section ( 4) of Section 306 is mandatory. The corollary is that non-compliance of such mandatory requirements would vitiate tht: proceedings. But the provisions of sub-section ( 4) of Section 306 an: not attracted to case falling under the purview of St:ction 307 of the Code. The Court thert:after considered the provision of Section 465 Cr.P.C. and observt:d that the said provision cannot be attracted in situation where court having no jurisdiction under the Code does something or passes an order in contravc;;ntion of the mandatory provisions of the Code. The said provision cannot be applied to patent defect of jurisdiction. In that case, Chief Judicial Magistrate had tendered pardon to the accused after the case was committed to the Sessions Court and, therefore, the Court held that it was cast: of total lack of jurisdiction. But, after excluding the evidence of approv1;;r the court appreciated the other evidence which was produced on n:cord for finding out whether the accused was guilty of the offence charged. Further, the court did not hold that the trial of the accused was ilkgal. In the said case, the Court did not consider the effect of irregularities committed by the Magistrate taking cognizance of the offence in not asking the accused to cross-examine the approver. That was case whc;;re after the case was committed to the Sessions court, the Chief Judicial Magistrate granted pardon to one of the accused. In that set of circumstances, the Court held that there was total lack of jurisdiction with the Chit:f Judicial Magistrate which is not curable. The court excluded the evidence of the approver on the ground that pardon could not have been tendered by the Chief Judicial Magistrate after committal of the proceed-H

(2000) 1 S.C.R.

. ings to the Court of Sessions. It is apparent that as per Section 307 Cr.P.C. the Court of Session before whom the trial is pending alone would have jurisdiction to grant pardon to the accused of that case and hence if the Chief Judicial Magistrate tenders pardon his action is not curable within the ambit of clause (g) of Section 460 of the Cr.P.C.

In Suresh Chandra Bahri's case (supra) this Court considered the provisions of sub-section ( 4) of Section 306 and observed that the object and purpose of enacting the provision is obviously intt:nded to provide safeguard to the accused inasmuch as the approver has to make statement disclosing his evidence at the preliminary stage before the committal order

is made and the accused not only becomes aware of the tvidence against him, but he is also afforded an opportunity to meet with the evidence of the 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. Learned Judges pointed out the utility of examination of the approver at two stages. While holding that the provision is mandatory, the Court said that since the defect was rectified in that case the non-compliance of it cannot be hdd to have vitiated the proceedings. Their Lordships did not consider the situation as in the case where the approver was examined and the case went to the trial court where the approver was cross-examined without raising any demur regard-ing the omission to cross-examine him at the pre-committal stage. After considering the provisions of Section 306, the Court held that-

' .... if the defect of not examining the approver at the committal stage by the committing Magistrate is rectified later, no prejudice can be said to be caused to an accused person and, therefore, the trial cannot be said to be vitiated on that account".

The Court held that when the case was committed to the Sessions Court, the defect that approver was not examined as witness in the Court of Magistrate taking cognizance of an offence was noticed by the Sessions Court. therefore, matter was rtmanded to the court of Chief Judicial Magistrate with direction to record the statement of the approver. After recording tht: statement, the case was committed for trial to the Sessions Court. Hence, it was held that as the dtfect was rectified, the argument

that the trial was vitiated could not be accepttd.

In the present appeal, there is no question of total lack of jurisdiction with the Magistrate and it is not the case that approver is not examined by the trial court before granting pardon. Approver Sandeep Kumar was arrested on 26.3.1988 While in custody, he submitted an application through Superintendent of Jail to CJM, Dhararnshala on 8.6.1988 express-ing his intention to make true disclosure of the facts regarding the incident. The application was taken up by CJM on 9.6.1988 and notice was issued to prosecution for 13.6.1988. On that day, accused was produced before the CJM. It was explained to the approver that his statement could be used against him also and with view to give time to accused before becoming approver, the case was adjourned to 15.6.1988 and on that day he was examined and pardon was granted to him. But at that stage the remaining accused were not asked to cross-examine him. Formal challan was submitted before the Magistrate by the Investigating Officer on 22.6.1988. After complying with the objections, the case was committed to the Court of Session on 4.8.1988. During the trial, the approver was examined as PW29 on 5.4.1989 and on the same day he was cross-examined by the counsel for the accused. Witnesses for the defence were examined and completed on 15.11.1989. Between 15.11.1989 and 8.5.1990, learned Sessions Judge, Dharamshala heard arguments visited the spot with view to appn:ciatt: the evidence on record and thereafter the learned Sessions Judge pa5sed his judgment and order. It was during the arguments in the Sessions Court that the contention was raised for the first time that procedure prescribed under Section 306(4)(a) Cr.P.C. was not complied with and, therefore, trial was vitiated. Till then none of the accused raised such an objection and they never felt the need to raise it. Acceptance of this objection would only promote technical plea which would adversely affect dispensation of justice.

In such circumstances, we are of the view that provisions of Section 465 Cr.P.C. would come into operation. The said provision inter alia provides that no order passed by Court of competent jurisdiction shall be reversed on account of any error, omission or irregularity in order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, unless in the opinion of the Court, failure of justice has in fact been occasioned thereby. Section 465(2) Cr.P.C. further provides that in determining whether any error, omission or irregularity in any proceeding under the Code has occasioned failure of justice, the Court shall have regard to the fact whether the objection

672 SUPREME COVRT REPORTS (2000] 1 S.C.R.

could and should have been raised at an earlier stage in the proceedings. We again point out that before or after the case was committed to the Sessions Court, accused have not raised any objection that they were not permitted to cross-examine the approver, nor did they contend so when the approver was examined and cross-examined during the trial. Therefore, at the stage of final arguments, accused cannot raise the said contention. Further after cross-examining the approver in detail, there is no question of failure of justice nor any prejudice being caused to the accused on account of that omission.

The foamed counsel for the accused submitted that Section 306(4)(a) is couched in mandatory term by using the word "shall' which indicates that if there is breach of the said mandatory provision further trial would be vitiated. In our view, this submission is without any substance. We have pointed out earlier that by not 1:xamining the approver, the trial would not get vitiated. Such evidence may havt: to be scruitinised with greater cir-cumspection. If in such scrutiny the evidence is found reliable the Court

cannot be inhibited from using the evidence.