Judgment This Appeal has been preferred by the State against the order of acquittal passed by the First Additional Sessions Judge, Cuddalore, in S.C. No. 129 of 1973. 2. After the appeal was admitted, notices were issued to the sole accused, who is the respondent herein. They were all returned with the endorsement that the accused is an underground extremist since August, 1980. The accused prior to 1980, was detained under the MISA from 29.8.1977 to 23.9.1977. His present whereabouts are not known. Hence, the papers are placed before this Court for orders. 3. The learned Public Prosecutor submitted that the Court below had not properly interpreted the scope of Section 33 of the Evidence Act, which led to the failure of justice, and that it is enough if the principles of law with regard to examination of the approver, under Section 33 of the Code of Criminal Procedure, are set right. 4. The brief facts of the case which give rise to this criminal appeal are as follows: The accused/respondent and ten others along with the members of Indian Communist (Marxist-Leninist) organised the said party and held meetings at Neyveli. In May, 1969, the respondent herein conducted classes and incited the members to use force with weapons to wipe out the rich landlords, capitalists and money lenders. The respondent took part in the meeting held in the house of one Shanmuga Nadar in the month of August and there also it is alleged that he instigated the members to adopt the ‘guerilla’ system and attack the rich people with knife and spear. The Sub-Inspector of Neyveli Police Station was waylaid and stabbed. The case was registered against ten persons. One of the accused Rangarajan turned as an Approver. Since the accused/respondent was absconding, the cases of the accused were tried separately and they were disposed of. After apprehending the respondent, the Approver was also examined and two other witnesses were also examined by the Committing Court. The approver sticked on to his version. Then the case was committed and the charge was framed against the accused/ respondent under Section 307 read with 109 and 120-B Indian Penal Code. P.Ws. 1 to 16 were examined and Exhibits P.1 to P.24 were marked. After the disposal of the first case, the Approver was released. The approver sticked on to his version. Then the case was committed and the charge was framed against the accused/ respondent under Section 307 read with 109 and 120-B Indian Penal Code. P.Ws. 1 to 16 were examined and Exhibits P.1 to P.24 were marked. After the disposal of the first case, the Approver was released. Summons were taken to him for examination in the present case and warrant was also issued in the case. In spite of the best efforts by the police, they would not secure the Approver for examination before the Sessions Court. The learned Public Prosecutor filed a petition in Criminal M.P.No.56 of 1979 to admit the evidence given by the Approver before the Committal Court under Section 33 of the Evidence Act as substantive evidence before the Sessions Court. The said application was dismissed and the accused was acquitted mainly on the ground that the material witness viz., the Approver was not examined to prove the conspiracy charge. 5. Now, let us consider whether the deposition given by the Approver before the Committal Court can be admitted as evidence under Section 33 of the Indian Evidence Act. Section 33 of the Indian Evidence Act reads as follows: “Relevancy of certain evidence for proving in subsequent proceeding, the truth of facts therein stated: Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same Judicial proceeding, the truth of the facts which i1 states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, of if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.” The learned Sessions 3udge on the facts held that in spite of the best efforts taken by the prosecution, the Approver could not be secured and as such the requirement of Section 33 of the Evidence Act is complied with. But, since the Approver is not a witness and only an accused, the said provision is not applicable. But, since the Approver is not a witness and only an accused, the said provision is not applicable. The learned Sessions Judge, stated since opportunity was given to the accused before Committing Magistrate to cross-examine but he had not availed of it, it cannot be contended that the said deposition cannot be admitted. Now let us consider whether Section 33 of the Evidence Act can be invoked in the case of an Approver also. The case was tried under the old Code of Criminal Procedure (1898 Act). The corresponding new Section under the 1973 Act for old Section 337 Criminal Procedure Code is Section 306 and there is no change in the said provision. Section 306(4) reads as follows: “(4) Every person accepting a tender or of pardon made under sub- section (1) (a) shall be examined as a 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”. On a bare reading of the provision, it is clear that after tendering pardon, the person shall be examined as a witness in the subsequent enquiry and trial. From the facts of the instant case, it is clear that the Approver was examined only as a witness before the Committing Magistrate. Section 33 of the Evidence Act deals with the evidence given by a witness. It is not disputed that the deposition of a witness before the Criminal Court can be marked if he had subsequently disappeared and could not be placed and admitted in evidence in the Sessions Court. The reason given by the Lower Court for not admitting the same as evidence is that Section 33 of the Act is applicable only in the case of a witness and not to an Approver. In fact the decisions referred to by the learned Sessions Judge relate only to examination of the witness, vide Mulkraj v. Delhi Administration Mulkraj v. Delhi Administration (1974) S.C.C. (Crl.) 698: (1975) 3 S.C.C. 2 : (1974) Crl.L.J. 1171: A.I.R. 1974 S.C. 1723, Tulsiram v. State Tulsiram v. State A.I.R. 1956 Bhopal, 52 and Tahawar Ali Khan v. Emperor Tahawar Ali Khan v. Emperor A.I.R. 1946 Oudh, 26. The decision in A.J. Pelvis v. State of Madras A.J. Pelvis v. State of Madras (1954)55 Crl.L.J. 1638: A.I.R. 1954 S.C. 616 relates to the effect of non-examination of an Approver and it was held that the Approver must be acquitted, once he is tendered pardon. In P.amanath v. Emperor P.amanath v. Emperor (1928)108 I.C. 514: 29 P.L.R. 165: A.I.R. 1928 Lah. 320 (2) the Approver had gone back on his statement before committing Magistrate and hence he was not examined in the Trial Court. The pardon tendered was cancelled and the Approver himself was tried for the offence of murder. The Approver contended that he ought to have been examined in the Sessions Court and having not done so, he cannot be proceeded against but this contention was accepted. In the decision in Emperor v. Shahdino Dhaniparto Emperor v. Shahdino Dhaniparto A.I.R. 1940 Sind. 114 it was held that the Approver should be examined before the committal as well as the Sessions Court. In the instant case, we are concerned only with the applicability of Section 33 of the Indian Evidence Act to an Approver who could not be secured in spite of the best efforts taken by the prosecution. He was examined as a witness before the Committal Court. As already observed, Section 306(4)(a) of the Criminal Procedure Code clearly reveals that the Approver is to be examined as a witness before the Magistrate and not as an accused. Section 33 of the Evidence Act also deals with the prior evidence of a witness before the Judicial proceeding. Hence, there is no difficulty in applying the provisions of Section 33 of the Evidence Act to the admissibility of the prior deposition of an Approver before the Committing Magistrate in Sessions Trial. The Court below ought to have admitted the evidence of the Approver as substantive evidence before the Sessions Court. The order of the Court below is liable to be set aside. 6. Since, notice could not be served on the respondent and the learned Public Prosecutor submitted that the prosecution is not interested in the conviction of the respondent, and that only the principles of law should be set right, I am not inclined to interfere with the order of acquittal. The Criminal Appeal fails and is dismissed. V.K. ----- Appeal dismissed.