INTRODUCTION

An Analysis of Supreme Court’s judgment in ‘A. Srinivasulu’ – Effect of non-examination of the approver prior to commencement of the trial.

The Supreme Court of India in a recent decision titled, ‘A. Srinivasulu v. The State’ [Criminal Appeal No. 2417 of 2010] examined whether the non-examination of the approver by the magistrate before the commencement of the trial under Section 306(4)(a) of the Criminal Procedure Code, 1973 (“CrPC”) vitiates the proceedings.

The case related to a tender floated by the Bharat Heavy Electricals Limited (“BHEL”) for installing desalination plants in the state of Tamil Nadu. It was alleged that the then Executive Director of BHEL entered into a criminal conspiracy with other officials of BHEL to award the tender to M/S Entoma Hydro System’s (“Entoma”). The proprietor of Entoma was also roped in as an accused along with his relatives, who were alleged to be a part of the conspiracy.

The matter was Investigated by the Central Bureau of Investigation (“CBI”) and inter alia charges under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (“PC Act”) were also levelled against the officials of BHEL. Subsequently, the then Deputy General Manager (DGM) of BHEL was arrested in the matter and he confessed to his wrongdoings. However, he was made to turn as an approver in the matter, and upon an application preferred by CBI under Section 306 of the CrPC, he was granted pardon by the Chief Judicial Magistrate.Thereafter, the CBI filed a chargesheet directly before the Special Court, with the Executive Director of BHEL arraigned as Accused No. 1 along with other officials of the BHEL as Accused Nos. 2 to 4. The private persons were arraigned as Accused Nos. 5 to 7.

The DGM was examined as a witness during the trial. Eventually, the Trial Court and the High Court both found Accused No. 1 along with Accused Nos. 3, 4, and 7 as guilty of the alleged offences. All of them filed appeals before the Supreme Court.

One of the contentions raised before the Supreme Court by the of A7 was that Section 306(4)(a) of the CrPC requires that the person being granted pardon be examined twice, once by the magistrate before committal as a court witness, and thereafter at the time of trial as prosecution witness. The failure to examine the approver before the committal vitiated the entire proceedings.

It was further argued that Section 307 of the CrPC, which grants the power of pardon to the court where the case has been committed, cannot come in the defence of the prosecution, as there was no committal and CBI directly filed the chargesheet before the Special Court. It is important to note that unlike Section 306(4)(a), Section 307 of the CrPC does not require the approver witness to be examined twice.

ARGUMENTS

Further, it was argued that the Special Courts were empowered to directly granted pardon under Section 5(2) of the PC Act, and the application for pardon in the present case ought to have been made directly before the Special Court. Such a pardon, it was argued, is materially different than the one under Section 307, which requires prior committal of the proceedings.

Under Section 5(1) of the PC Act, the Special Court was empowered to directly take cognizance of the offences without prior committal. Therefore, it eschews the restriction under Section 193 of CrPC, which constrains the court of sessions from taking cognizance of the offences as a court of original jurisdiction and mandates the case to be committed to it by the magistrate. Consequently, in a case such as the present one, where the chargesheet was filed directly before the Special Court, the application for pardon ought to have been made before it.

While the Supreme Court relying upon its judgments in the case of A. Devendran vs. State of T.N [(1997) 11 SCC 720] [“A. Devendran case”] and Suresh Chandra Bahri vs. State of Bihar [1995 Supp (1) SCC 80] [“Suresh Chandra case”] held that the compliance of Section 306(4)(a) was mandatory and its non-compliance would vitiate the proceedings, it observed that the primary reason for examination of the approver prior to committal was to ensure that the accused is made aware of the evidence against him at a preliminary stage. In the present case, the state of the approver was attached with the chargesheet and the magistrate who recorded the confession of the approver was also examined as a witness. Therefore, no prejudice was caused to the accused.

Further, the Supreme Court observed that there were two routes to seek pardon. One was through the committal route, where the magistrate would tender pardon and examine the approver before committal (Section 306 of CrPC). The other was under Section 5(1) and 5(2) of the PC Act, where the cognizance was directly taken by the Special Court and it had the power to grant pardon. The Supreme Court relying upon its decision in State vs. Arul Kumar [(2016) 11 SCC 733] [“Arul Kumar case”] observed that in the second category of cases, the requirement of examination prior to committal under Section 306(4)(a) is dispensed.

The Supreme Court In the present case held that the aforementioned reasoning is further buttressed from the decisions of the Supreme Court in Sardar Iqbal Singh v. State (Delhi Admn.) [(1977) 4 SCC 536] [“Sardar Iqbal case”] and Yakub Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1 [“Yakub Memo case”]. In both these cases, the magistrate did not examine the approver after tendering pardon as the chargesheet was filed directly before the designated/special court. However, the Supreme Court held that there was no illegality on account of non-examination of the approver twice.

In my view, the reasoning employed by the Supreme Court is rather convoluted. In Sardar Iqbal case, an argument was raised that if the complaint/chargesheet is directly filed before the designated/special court, the benefit of examining the approver twice, granted under Section 338 of CrPC, 1898 (pair materia Section 306 of the CrPC, 1973) is taken away from the accused. It was argued that such an action would be discriminatory as the prosecution would prefer to file the complaint/chargesheet directly before the designated/special court to deny this advantage. However, the Supreme Court observed that the denial of the advantage to examine the approver twice, did not make any material difference to the detriment of the accused, violating Article 14 of the Indian Constitution. The judgment in the Yakub Memon case also relies upon the same reasoning. However, the judgments in A. Devendran case and Suresh Chandra case were not considered by the Supreme Court in the Yakub Memon case. Once it has been held that if the process under Section 306(4)(a) is not followed, it will vitiate the proceedings, then it but follows that purposeful denial of such an advantage is discriminatory and attracts the rigour of Article 14 of the Constitution of India.

HELD

Further, even in the Arum Kumar case, the Supreme Court held that the provisions of Section 306 of the CrPC would get by-passed if the cognizance of the offences had been taken under Section 5(1) of the PC Act by the Special Court – at the same time, it envisaged that the pardon in such a scenario would be granted under Section 5 (2) of the PC Act by the Special Court.

In the present case, though the Supreme Court held that Section 306 can be by-passed if the cognizance has been taken under Section 5(1) of the PC Act, it failed to consider that the pardon so granted had to be under Section 5(2) of the PC Act. To that extent, the grant of pardon under Section 306 was erroneous, and the only way to cure the defect was to examine the approver under Section 306(4)(a) as court witness before producing him as prosecution witness during the trial. In this case, however, the accused persons were acquitted on other grounds.