Gujral, J. - (1.) THIS petition under section 561 -A of the Criminal Procedure Code is directed against the order of the Special Judicial Magistrate, Patiala, dated 3rd August, 1971 whereby the petitioners were committed to the Court of Session to stand their trial under section 120 -B read with sections 420, 467 and 468 of the Indian Penal Code. The case of the prosecution against the petitioners is that during the period March to October, 1963 they entered into a conspiracy with the object of cheating the Regional Passport Officer, New Delhi, for obtaining passports for various persons to facilitate their travel to the United Kingdom. It was also alleged that the object of the conspiracy was also to prepare forged and false documents and to submit those for obtaining passport.
(2.) IN this case after the submission of the police report under section 173 of the Criminal Procedure Code the prosecution was given a number of opportunities by the committing Magistrate to produce evidence and ultimately only the statement of the approver, Tejwant Singh, was partly recorded. The statement could not be completed as the documents which were to be proved by this witness were not on the record of the case. Subsequently when the documents were received from the court of Assistant Sessions Judge, Delhi, the approver could not be served. A number of opportunities having been given to the prosecution to produce the approver the prosecution evidence was closed by the committing Magistrate without recording the statement of the approver as his presence could not be secured. The accused were then committed to stand their trial on the basis of the documents brought on the record. On behalf of the petitioners it is contended that the approver not having been examined the order of commitment was illegal and was liable to be quashed. Reference in this respect was made to the provisions of sub -sections (2) and (2A) of section 337 of the Criminal Procedure Code which are in the following terms: - 337. (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. (2A) 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. A bare perusal of the above provisions would show that a person accepting a tender of pardon is to be examined as a witness by the committing Magistrate as well as at trial and that that committing Magistrate is competent to commit for trial only after examining the person to whom pardon has been tendered it he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence. Without there being the evidence of the approver before him the committing Magistrate cannot proceed to decide whether there are reasonable grounds for believing that the accused is guilty of an offence In this view I find support from a Full Bench decision of the Gujarat High Court in Kalu Khoda and others The State : AIR 1962 Guj. 283, where in the following observations appear: - The committal proceedings and the order would be illegal if, in breach of sub -section (2) of S. 37, the committing Magistrate commits an accused to the Court of Session without the prosecution examining the person who has been tendered pardon and who has accepted the same. Though S. 207 -A was enacted later than S. 227(2) (sic), the former cannot be said to have been superimposed on the latter. The committal order passed in a case where a person is made an approver is not one made under Chapter XVIII, but is one made S. 337(2 -A), and therefore, the procedure laid down for committal proceedings in S. 207 -A must be read subject to the provision of sub -s. (2 -A) of S. 337. The above observations are a complete answer to the argument that the examination of the approver before commitment was not necessary as under section 207 -A of the Code the committing Magistrate was not bound to examine the approver. Section 207 -A is a general provision relating to commitment of the accused while section 337 is a special provision dealing with the approver. Sub -sections (2) and (2A) of section 337 of the Code must, therefore, govern the commitment proceedings where a person has been mode an approver.
(3.) FOR the reasons stated above, the commitment proceedings are illegal for the failure of the Magistrate to examine the approver as a witness. The proceedings are, therefore, quashed.;