STATE OF HLMACHAL PRADESH versus SURINDER MOHAN AND ORS.

Citation: [2000] 1 S.C.R. 659 · Decided: 07-02-2000 · Supreme Court of India · Bench: K.T. THOMAS, M.B. SHAH

Judgment (excerpt)

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 
A 
B 
c 
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 D 
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. 
E 
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 
F 
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, a contention was raised 
for the first time by the accused that the procedure prescribed under H 
659 
660 
SUPREME COURT REPORTS 
f20COJ I S.C.R. 
A 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 
B 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 
C 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 
E 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 
F of India, AIR (1978) SC 514, referred to. 
1.2. In the instant case during the final arguments in the Sessions 
Court a 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 
G 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 
H error in order, judgment or other proceedings before or during the trial 
STATE v SllRINDER MOHA.N [SHAH,J.] 
661 
of in any inquiry or other proceedings under the Code, unless in the A 
opinion of the Court such failure o

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