Saidevan Thampi vs State Of Kerala

[Cites 93, Cited by 0]

Kerala High Court

Saidevan Thampi vs State Of Kerala

Bench: P.Bhavadasan

       

  

  

 
 
          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT:

          THE HONOURABLE MR.JUSTICE P.BHAVADASAN

   TUESDAY, THE 8TH DAY OF OCTOBER 2013/16TH ASWINA, 1935

              Bail Appl..No. 7783 of 2012 ()
              -------------------------------
       CRIME NO. 565/2011 OF KOIPURAM POLICE STATION,
                   PATHANAMTITTA DISTRICT
                           -----
    PETITIONER/ACCUSED A11 :
    ----------------------
      SAIDEVAN THAMPI
      S/O.RAHMOHAN THAMPI, SWAPNAM
      THULAMPARAMBU NADUVATH MURI, HARIPAD VILLAGE.

      BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.)
                       SRI.K.K.DHEERENDRAKRISHNAN
                       SRI.S.RAJEEV
    RESPONDENTS/STATE :
    -----------------
   1. STATE OF KERALA
      REPRESENTED BY THE PUBLIC PROSECUTOR
      HIGH COURT OF KERALA, ERNAKUALM.682 031.
     (CRIME NO. 565/2011 OF KOIPURAM POLICE STATION
      PATHANAMTHITTA DISTRICT).

    ADDL.R2 TO R5 IMPLEADED :
   2. UNION OF INDIA,REP.BYITS SECRETARY,
      MINISTRY OF LAW & JUSTICE, A-WING,
      4TH FLOOR, SASTRI BHAVAN, NEW DELHI-110 001

   3. MINISTRY OF HOME AFFAIRS,
      HOME DEPARTMENT, NORTH BLOCK,
      CEN TRAL SECRETARIAT, NEW DELHI-110001
      REP. BY HOME SECRETARY.

   4. CHIEF SECRETARY TO THE GOVERNMENT
      GOVERNMENT SECRETARIAT,
      THIRUVANANTHAPURAM - 695 001.

   5. THE SECRETARY, HOME DEPARTMENT
      GOVERNMENT SECRETARIAT,
      THIRUVANANTHAPRUAM  - 695001.
    ADDL.R2 TO R5 ARE IMPLEADED AS PER ORDER DT 22/11/2012
    IN CRLM.A. 7603/2012 IN BA 7783/12.

     R1,R4 & R5 BY SRI. TOM JOSE PADINJAREKKARA (ADGP)
     R2 & R3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
         ADV.SUNNY MATHEW (AMICUS CURY)

      THIS BAIL APPLICATION  HAVING COME UP FOR ADMISSION
      ON 09-09-2013,ALONG WITH BA. NO.8607/2012,THE COURT
      ON 08-10-2013 PASSED THE FOLLOWING:
BP



                        P. BHAVADASAN, J.
              - - - - - - - - - - - - - - - - - - - - -
              - -B.A.-Nos.-7783-&- 8607 - - - - - - -
                                          of 2012
             Dated-this the -8th day- of October, 2013.
                      - -     -       - -


                                ORDER

These applications filed under Sections 439 and 482 of the Code of Criminal Procedure seek release of the petitioners from custody in view of the fact that the petitioners have been tendered pardon by the courts concerned in spite of the bar under Section 306(4)(b) of Cr.P.C. contending that the prohibition contained in the said provision cannot override the inherent powers under Section 482 of Cr.P.C. and also that if it is to be held that bar under Section 306(4)(b) of Cr.P.C. is absolute, then it is constitutionally invalid and has to be struck down.

2. First on to the facts of each of these cases. In B.A. No. 7783 of 2012 the petitioner was arrayed as the 11th accused in Crime No. 565 of 2011 of Koipuram Police Station and he is alleged to have committed offences along with the B.A.7783 & 8607/2012.

other accused punishable under Sections 120B, 115, 143, 147, 148, 447, 302 and 308 read with Section 149 of the Indian Penal Code. According to the petitioner, as on the date of the commission of the incident he was aged only 18 years his date of birth being 9.11.1993. He was studying in the third semester at Amritha Vidhyalayam Engineering College, Vallikkavu, Kollam. The petitioner had only accompanied his friends to gymnasium on 20.11.2011 and he was unaware of the intention, motive and design of the other persons who were along with him. He had no idea or clue that the persons with whom he had gone were intending to commit criminal offences. Whatever that be, as a result of the act committed by the other accused persons, the petitioner was also roped in and he thus became an accused. He however volunteered to make a full and complete disclosure of all the circumstances within his knowledge relating to the offences and the other persons and accepting his proposal he was tendered pardon. His statement was recorded and the learned Chief Judicial B.A.7783 & 8607/2012.

Magistrate tendered pardon to the petitioner on conditions mentioned in the Section.

3. It is pointed out that unfortunately the petitioner was in custody and had not been released on bail at the time when he was tendered pardon. After being tendered pardon, he moved for bail but in view of Section 306(4)(b) of Cr.P.C., his application was rejected.

4. In B.A. No. 8607 of 2012, the petitioner is the 9th accused in Crime No. 766 of 2012 of Pudukkad Police Station and he stands accused of having committed offences punishable under Sections 120B, 143, 147, 148, 341, 324, 326, 302 and 212 read with Section 149 of I.P.C. and also under Section 27 of the Arms Act. The allegations against the petitioner and the co-accused are that on 6.6.2012 at about 11p.m. the accused persons formed themselves into an unlawful assembly and armed with deadly weapons attacked the victim, who succumbed to his injuries. It is pointed out that the petitioner was tendered pardon and at the relevant B.A.7783 & 8607/2012.

time he was in custody and had not been released on bail. His subsequent application for bail was rejected in view of the bar under Section 306(4)(b) Cr.P.C.

5. Being satisfied that there is a prima facie case established by the respective petitioners and feeling that the continued incarceration of the petitioners may be unjustified, this Court granted interim bail to the petitioners.

6. The question posed is whether Section 306(4)(b) of Cr.P.C. casts an absolute bar on courts from releasing the person from custody who has been tendered pardon and who at the relevant time was not on bail.

7. In view of the importance of the question involved, Shri.Sunny Mathew was appointed as Amicus Curie. Even though in these petitions, Union of India was impleaded and the copies were served on the Standing Counsel, Union of India felt it unnecessary to address the court on the issue involved in these cases.

B.A.7783 & 8607/2012.

8. It is the contention of the petitioners that Section 306(4)(b) of Cr.P.C., though couched in a mandatory language, is open to contextual and purposive interpretation and it cannot be treated as one casting an absolute prohibition from atleast the High Court exercising its inherent powers under Section 482 Cr.P.C. and releasing the petitioners from custody in justifiable circumstances. Alternatively, it is contended that if the provision is to be treated as an absolute prohibition even fettering the powers of the High Court under Section 482 Cr.P.C., then necessarily, it is ultra vires Articles 14 , 16 and 21 of the Constitution of India, and will have to be struck down.

9. Shri.O.V.Radhakrishnan, learned Senior Counsel appearing for the petitioners, Shri. Sunny Mathew, the learned Amicus Curie, and Shri.Tom Jose Padinjarekkara, learned Additional Director General of Prosecution, appearing for the State, have submitted argument notes.

10. Shri. O.V.Radhakrishnan, learned Senior Counsel appearing for the petitioners in these petitions B.A.7783 & 8607/2012.

adopted a moderate approach and took the stand that it may not be necessary to consider the constitutional validity of Section 306(4)(b) of Cr.P.C. if the provision is interpreted in a reasonable and purposive manner. It is not necessary, according to the learned Senior Counsel, to test the constitutional validity of the provision in view of the fact that Section 306(4)(b) Cr.P.C. can be construed reasonably which will enable the court to mould its reliefs accordingly. Striking down of a provision as unconstitutional is the last resort and that should be resorted to when no other option is available and very sparingly. Learned Senior Counsel emphasized that it is the word 'shall' appearing in Section 306(4)(b) of Cr.P.C. that seems to fetter the powers of the court in releasing the person who has been tendered pardon and who is not already on bail. According to the learned Senior Counsel, the purpose of Section 306(4)(b) of Cr.P.C. is to be properly understood. Learned Senior Counsel relying on the decision reported in A.J.Peiris v. State of Madras (AIR 1954 SC 616) contended that B.A.7783 & 8607/2012.

the moment a person is tendered pardon, he is deemed to have been discharged and he is no longer an accused and his status thereafter is that of a witness. Contingencies may arise that releasing such a person immediately may result in drastic consequences and it is necessary to protect him and for that purpose there may be need to keep him in custody under the provisions of the Code. It is to meet such contingencies that the provision has been incorporated. Learned counsel went on to point out that but for the power given under Section 306(4)(b) of Cr.P.C. it would not have been possible for any court to detain a person who has been tendered pardon from custody, for, the Code does not envisage a witness being detained in custody indefinitely.

11. Learned Senior Counsel Shri.O.V.Radhakrishnan contended that the word 'shall' and the nature of the provision needs to be understood in the context with reference to the purpose for which it has been enacted and merely because the word 'shall' is there, it is not necessarily mandatory, as one B.A.7783 & 8607/2012.

prohibiting any court from exercising any sort of power and releasing a person who has been tendered pardon from custody. For the proposition that the word 'shall' need not be treated as mandatory, learned Senior Counsel relied on the decisions reported in M/s. Rubber House v. M/s. Exelsior Needle Industries Pvt. Ltd. ((1989) 2 SCC 413), Collector of Monghyar v. Keshav Prasad (AIR 1962 SC 1694), Naravan Rao v. State of Andhra Pradesh (AIR 1957 SC 737) and Central Bureau of Investigation v. R.S. Pai (2002(2) K.L.T. 149 (SC).

12. Learned Senior Counsel also contended that going by the wording in Section 482 Cr.P.C., it is clear that the powers under Section 482 Cr.P.C. is not fettered by any provision in the Code. Dilating on the point, learned Senior Counsel pointed out that if it is found that the person who has been tendered pardon is destined to remain in custody by virtue of the prohibition under Section 306(4)(b) Cr.P.C. it is certainly unjustified and unreasonable. In such contingencies, certainly powers under Section 482 Cr.P.C. is available to the B.A.7783 & 8607/2012.

High Court to exercise its discretionary power in proper circumstances directing release of the person concerned from custody. For the above proposition, learned Senior Counsel relied on the decisions reported in Noor Taki v. State (AIR 1987 Rajasthan 52), Prem Chand v. State (1985 (1) Crimes 99) and Kailash Nath v. State of Rajasthan (1998(1) WLC 766).

13. With reference to the petitioner in B.A. 7783 of 2012, the learned Senior Counsel also pointed out that he is a student who was undergoing his 3rd Semester in the Engineering Course and the fetter, if so construed, imposed by Section 306(4)(b) Cr.P.C. affects his right to education, which, according to the learned Senior Counsel, is violative of Article 21 of the Constitution. However, learned Senior Counsel pointed out that it may not be necessary to strike down the provision if the approach suggested by the learned Senior Counsel initially is to be adopted and accordingly relief is granted to the petitioner.

B.A.7783 & 8607/2012.

14. Learned Amicus Curie Shri. Sunny Mathew was more severe in his attack. According to him, if the provision, i.e., Section 306(4)(b) Cr.P.C., is construed as an absolute bar on power of the courts from releasing the person concerned from detention, then it is constitutionally invalid as it violates Articles 14 and 21 of the Constitution. He too relied on the decision reported in A.J.Peris v. State of Madras (AIR 1954 SC

616) and contended that once pardon is tendered to an accused, his character changes and he can no longer be treated as an accused but only as a witness. To read Section 306(4)(b) Cr.P.C. as a provision which enables the court to detain a person in jail indefinitely cannot be treated as reasonable and in accordance with the constitutional provisions and is ante thesis to criminal jurisprudence. Dilating on the unconstitutionality of the provision, learned counsel pointed out that may be that the classification between persons on bail and persons not on bail could be justified. But the constitutionality of a provision under B.A.7783 & 8607/2012.

Articles 14 , 16 , 19 and 21 is to be tested on two grounds. The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and the differentia must have reasonable nexus to the object sought to be achieved by the statute in question. Learned counsel relied on several decisions which would show the scope and ambit of Article 14. So also it was pointed out by the learned Amicus Curie that the interpretation of Article 21 in Maneka Gandhi's case (AIR 1978 SC 597) was that no one shall be deprived of his life or personal liberty except by procedure established by law. Learned counsel went on to point out that even assuming as already stated that classification between persons who are already on bail and not on bail though may be justifiable, the classification has no nexus to the object sought to be achieved. If it is to be taken as that Section 306(4)(b) Cr.P.C. is intended to protect a person who is tendered pardon, to ensure that he satisfies the conditions under which B.A.7783 & 8607/2012.

he is tendered pardon and also to ensure that he is available for trial, these conditions are equally applicable to the persons already on bail and they do not stand on a different footing. If that be the position, there can be no distinction between the persons already on bail and the persons in custody as regards the nexus to the object sought to be achieved by the provision. Learned counsel relied on the decisions reported in Maneka Gandhi v. Union of India (AIR 1978 SC 597), Francis Coralie Mullin v. Union Territory of Delhi (AIR 1981 SC 746) and several other decisions in support of his contention. Learned Amicus Curie supported the alternative contention that the contention raised by Shri. O.V. Radhakrishnan as regards the interpretation of the word 'shall' in Section 306(4)

(b) Cr.P.C. For the said purpose, he relied on the decisions reported in State of Uttar Pradesh v. Babu Ram Upadhya (AIR 1961 SC 751) and Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee (AIR 1976 SC 263) and passages from several text books by renowned authors. B.A.7783 & 8607/2012.

15. Meeting the above arguments, learned Additional D.G.P. contended that neither of the contentions raised by the petitioners can be accepted. Both the old provision under the 1898 Code, namely, Section 337, and the corresponding provision in the 1923 Code, namely Section 306(4)(b) Cr.P.C., stipulate that a person who has been tendered pardon and who has not been released on bail shall not be released on bail until termination of trial. The word used is 'shall' and that should be construed as a mandatory provision. According to the learned Addl.D.G.P., the provision is intended to serve a purpose and that purpose shall not be defeated by resorting to give a contextual and purposeful interpretation or by unjustified striking down of the provision as violative of Articles 14 , 16 and 21 of the Constitution. According to the learned Addl.D.G.P., there is a valid classification under Section 306(4)(b) of Cr.P.C. and the section is intended to serve an object and purpose, therefore, it could not be said that the classification made under Section B.A.7783 & 8607/2012.

306(4)(b) Cr.P.C. has no nexus to the object sought to be achieved. Calling to his aid Section 362 Cr.P.C. and Section 19(3) of the Prevention of Corruption Act and also Section 18 of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, it was contended by the learned Addl.D.G.P. that those provisions have been construed as mandatory and imposing a fetter on the court to exercise the power conferred on them and there is no reason why the same interpretation should not be adopted in the case of Section 306(4)(b) Cr.P.C. also.

16. Learned Addl.D.G.P. Contended that infact these aspects have been considered in a number of decisions and he relied on the following decisions in support of his contention:

Bhawani Singh v. State (AIR 1956 Bhopal 4), Ayodhya Singh v. State (1973 Crl. L.J. 768), In re Mukhesh Reddy (AIR 1958 AP 165), Smithlal v. State of Kerala (2012(4) K.L.T. 807), Satya Narayan Sharma v. State of Rajasthan (2001 KHC 768), B.A.7783 & 8607/2012.

State of A.P. v. Awad Bin Younus Yafai ((2013) 1 SCC 506), State of H.P. v. A Parent of a Student of Medical College, Shimla (1985 KHC 646), State of Kerala v. Manikantan Nair (2001 KHC 668), Moti Lal v. State of M.P. (1994 KHC 1367), State of U.P. v. Johri Mal (2004 KHC 993), Asif Hameed v State of J. and K. (1989 KHC 787).

17. Learned Addl.D.G.P. also contended that when there is a specific bar under the Code, it is well settled that the inherent power cannot be taken aid of to override the specific bar imposed by the Section concerned. For the said proposition, learned Addl.D.G.P. relied on the decision reported in Smithlal v. State of Kerala (2012 (4) K.L.T. 807) and Keecheri Handloom Weavers' Co.op. Society Ltd. v. Sub Divisional Magistrate (1981 KHC 386).

18. Before embarking on a consideration of the rival contentions, it is useful to refer to the relevant provisions. The three provisions which are relevant are Sections 306, 307 and 308 Cr.P.C. They read as follows:

B.A.7783 & 8607/2012.

"306. Tender of pardon to accomplice.- (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a 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 a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to-

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952;

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under sub- section (1) shall record-

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application B.A.7783 & 8607/2012.

made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender 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. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, -

(a) commit it for trial-

(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952, if the offence is triable exclusively by that Court;

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

307. Power to direct tender of pardon.- At any time after commitment of a case but before judgment is B.A.7783 & 8607/2012.

passed, the Court to which the commitment is made may, with a 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 a pardon on the same condition to such person.

308. Trial of person not complying with conditions of pardon.- (1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence :Provided that such person shall not be tried jointly with any of the other accused :

Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence. (2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under B.A.7783 & 8607/2012.

section 164 or by a Court under sub-section (4) of section 306 may be given in evidence against him at such trial.

(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made; in which case it shall be for the prosecution to prove that the condition has not been complied with.

(4) At such trial, the Court shall -(a) if it is a Court of Session, before the charge is read out and explained to the accused;

(b) if it is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made.

(5) If the accused does so plead, the Court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall, notwithstanding anything contained in this Code, pass judgment of acquittal."

B.A.7783 & 8607/2012.

19. Sections 306 and 307 Cr.P.C. correspond to Sections 337 and 338 of the old Code of 1898. A close look at Section 306 Cr.P.C. would show that while the Chief Judicial Magistrate and the Metropolitan Magistrate concerned are empowered to tender pardon during investigation, enquiry or trial, the Judicial First Class Magistrate concerned can grant pardon only during enquiry and trial. The power under Section 306 to tender pardon, whether it be by the CJM, Metropolitan Magistrate or the JFCM concerned, is applicable only in cases where the offence is punishable with imprisonment which may extend to seven years or with more severe sentence. The provision also stipulates that every Magistrate who tenders pardon under sub-section (1) shall record his reasons for doing so and whether the tender was or was not accepted by the person concerned. Section 306(1) Cr.P.C. stipulates that the court may tender a pardon to the person concerned on making a full and true disclosure of the whole of the circumstances within his knowledge relating to B.A.7783 & 8607/2012.

the offence and to every other person concerned. The wording of Section 306(1) could indicate that it is not necessary that the person who has been tendered pardon must be an accused because the provision says that pardon would be tendered to a person supposed to have been directly or indirectly concerned in or privy to such offence.

20. The Section is a clear exception to the principle that no inducement shall be offered to a person to disclose what he knows. It has been held that granting pardon and examining approver as witness are at best a necessary evil. The purpose of the Section seems to be that there may be instances where inspite of proper and honest investigation, evidence may not be available in cases of grave and serious offences. Therefore, it becomes necessary to resort to Section 306 or Section 307 Cr.P.C. as the case may be to ensure that the offenders do not escape from the clutches of law. Sections 306 and 307 Cr.P.C. have been enacted to enable the court to obtain evidence which is not otherwise forthcoming. B.A.7783 & 8607/2012.

21. Section 307 Cr.P.C. enables the court to which the case is committed to tender pardon before judgment is passed for, the same purpose as envisaged under Section 306 Cr.P.C. However, Section 307 stipulates that pardon should be tendered on the same condition to such persons. The wording 'same condition' mentioned in Section 307 Cr.P.C. has been construed as one confining to the conditions made mention of in Section 306(1) Cr.P.C.

22. It is significant to notice that Section 307 Cr.P.C. does not indicate that the Sessions Court or the court to which the case is committed, while tendering pardon, has to record its reasons or to record whether the tendering was accepted or not accepted. It also does not contain the conditions similar to Section 306(4)(b) Cr.P.C.

23. Section 308 Cr.P.C. deals with a situation where a person who has been tendered pardon does not comply with the conditions of pardon. That provision relates to persons B.A.7783 & 8607/2012.

who have been tendered pardon both under Sections 306 and 307 Cr.P.C.

24. It would appear that the purpose of Section 306 (4)(b) Cr.P.C. is to protect the person who has been tendered pardon from the wrath of the persons he has chosen to expose and also that he is available as a witness at the time of trial. It also contemplates a situation where undue advantage could be taken by a crafty accused.

25. One of the questions that arises for consideration is whether the prohibition under Section 306(4)

(b) Cr.P.C. is absolute and admits of no exception or leniency. If that be so, can it withstand the test of constitutionality under Articles 14 , 16 and 21 of the Constitution. Of course, the classification into two groups, namely, those persons who are on bail and those persons not on bail may be justified. But that may not by itself be sufficient. It is by now well settled that the classification so made should have a nexus to the object sought to be achieved.

B.A.7783 & 8607/2012.

26. After Maneka Gandhi's case, scope of Article 21 has kept on widening. It now takes in all facets of life. Illegal curtailment of freedom or indiscriminate confinement certainly fall under the vice of Articles 14 and 21. Prima facie, it would appear that there is some merit in the contention raised by the learned Amicus Curie that the provision, namely, Section 306(4)(b), cannot stand the test of constitutionality.

27. But striking down a provision as unconstitutional, as rightly pointed out by the learned Senior Counsel Shri.O.V.Radhakrishnan, is the last resort and should be exercised in exceptional circumstances only and when no other remedy is available.

28. Shri.O.V.Radhakrishnan has raised two propositions. According to him, the word 'shall' appearing in Section 306(4)(b) Cr.P.C. need not be construed as mandatory but only as directory, and two, the word 'shall' should takes its colour in the context and purpose for which the provision is enacted.

B.A.7783 & 8607/2012.

29. It must be said that the approach suggested by the learned Senior Counsel Shri.O.V.Radhakrishnan appears to be reasonable and a possible view. As rightly pointed out by the learned Senior Counsel, on tendering of pardon, if it is to be construed that the accused stands discharged and he is in the position of a witness, then his further detention in custody could not be justified except under Section 306(4)(b) Cr.P.C. After the tendering of pardon, the subsequent custody of the person concerned may not be strictly the custody contemplated under the other provisions of the Code, but the subsequent custody is a qualified one and the power of detaining the person concerned is traceable only to Section 306(4)(b) Cr.P.C.

30. The object and purpose of the provisions have already been referred to. In the decision reported in Konajeti Rajababu v. State of A.P. (2002 Crl.L.J. 2990), the law has been summarized. In Ratanlal and Dhirajlal in the 'Commentary on B.A.7783 & 8607/2012.

the Code of Criminal Procedure', Vol.2 at page 1079, the authors have summarized it as follows:

"1. The power to grant pardon enjoined under Ss. 306 and 307 of the Code us a substantive power and it rests on the judicial discretion of the Court.

2. The power of the Court is not circumscribed by any condition except the one, namely, that the action must be with a view to obtaining the evidence of any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence.

3. The Court has to proceed with great caution and on sufficient grounds recognizing the risk which the grant of pardon involved of allowing an offender to escape just punishment at the expense of the other accused.

4. The secrecy of the crime and paucity of evidence, solely for the apprehension of the other offenders, recovery of the incriminating objects and production of the evidence otherwise unobtainable might afford reasonable grounds for exercising the power.

5. The disclosure of the person seeking pardon must be complete.

6. While tendering pardon, the Court should make an offer to the one least guilty among the several accused."

B.A.7783 & 8607/2012.

31. One has to note the difference in the wordings in Sections 306 and 307 Cr.P.C. The distinctions are quite obvious. In both Sections 306 and 307 Cr.P.C. the word used is 'supposed' and it is by now well settled that it clearly shows that the person tendered pardon need not actually be an accused. The Section only mentions about someone who is directly or indirectly connected with the offence. The word 'supposed' cannot be treated as meaning actual participation.

32. In the decision reported in A. Devendran v. State of Tamil Nadu (AIR 1998 SC 2821), it was held that the words 'same conditions' occurring in Section 307 Cr.P.C. refers to the conditions mentioned in Section 306(1) Cr.P.C. only, i.e., the person who is tendered pardon should make a full disclosure of whole of the circumstances within his knowledge relating to the offence.

33. The main attack against Section 306(4)(b) Cr.P.C. is that it is dependent on a fortuitous circumstance, B.A.7783 & 8607/2012.

i.e., the person, who has obtained bail prior to being tendered pardon to him, can enjoy the benefit of bail, while a person, who happens to be in custody, who is tendered pardon, has to languish in jail till the end of trial. According to the learned counsel, there is no rhyme or reason for such a distinction when the purpose and object intended to be achieved by detaining a person who is not on bail applies equally to the person on bail also, and there is no qualitative or quantitative difference between the purpose, scope and object to be achieved by Section 306(4)(b) Cr.P.C. between a person on bail and a person not on bail.

34. There is yet another aspect. A person who comes to the aid of the State if he happens to be in custody at the relevant time and he is tendered pardon, he is placed in a disadvantageous position. If he has been fortunate enough to get bail earlier, there is no provision by which his bail can be cancelled and custody can be ordered. It would appear that Section 306(4)(b) Cr.P.C. amounts to judicial ransom. Probably B.A.7783 & 8607/2012.

in good old days when expeditious trial was possible and much hardship might not have been caused to the person in custody under the relevant provision. The position is considerably different now. Trial begins after a considerable lapse of time, continues indefinitely and under those circumstances, to let a person languish in jail only because he chose to help the State in bringing the other offenders to justice, seems to be unreasonable.

35. It may be that Section 306(4)(b) Cr.P.C. has certain objects to serve. But under that guise, to impose complete prohibition against the person being released from custody defies logic and reason. Possibly one could say that reasonable restrictions could be imposed. But to insist that a person, who has been tendered pardon, if he is not on bail, should continue to be in custody till end of trial seems objectionable and illogical. It is also interesting to note that a person, who is tendered pardon under Section 307 Cr.P.C. and who is similarly placed as a person falling within the ambit of B.A.7783 & 8607/2012.

Section 306(4)(b) Cr.P.C., does not suffer from any such inhibition or prohibition. In other words, the prohibition seen engrafted in Section 306(4)(b) Cr.P.C. does not apply to a person who is tendered pardon under Section 307 Cr.P.C. be on bail or not. The absence of any such prohibition in Section 307 Cr.P.C. show that detention is not a mandatory condition. One fails to understand the basis for the said detention, A person tendered pardon either under Section 306 or under Section 307 stand on the same footing and the reason to treat them differently seen unjustified. However, one thing is clear that detention of a person to whom pardon is tendered need not necessarily be detained till end of trial. The court is not overlooking the fact that pardon under Section 306 Cr.P.C. could be during investigation, enquiry or trial while Section 307 Cr.P.C. applies only at the time of trial. While under Section 306 Cr.P.C. the person granted pardon may have to be examined twice, such a contingency may not arise under Section 307 Cr.P.C.

B.A.7783 & 8607/2012.

36. One may at once consider whether the constitutional attack can be sustained. Initially, it may be seen whether the differentia made in Sections 306(4)(b) Cr.P.C. and Section 307 Cr.P.C. is proper. To uphold a provision, it must fulfill two conditions, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) such differentia must have a rational relation to the object sought to be achieved by the statute or legislature in question.

37. In the decision reported in Ashutosh Gupta v. State of Rajasthan (AIR 2002 SC 1533), it was observed as follows:

"In order to pass the test of permissible classification, two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the B.A.7783 & 8607/2012.

group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the Act."

38. Unmerited detention and deprivation of personal liberty now stands within Article 21 of the Constitution and the said Article stares at one's face and dealing with such situations in the decision reported in Smt.Maneka Gandhi v. Union of India (AIR 1978 SC 597), it was held as follows:

"The expression 'personal liberty' in Art.21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Art.19."

39. In the decision reported in Unnikrishnan v. State of A.P. (1993)1 SCC 645), it was held as follows:

"Though Article 21 is worded in negative terms but it has both a negative and an affirmative dimension. The B.A.7783 & 8607/2012.

contention that it is only when the State makes a law taking away the right to education that Article 21 would be attracted, cannot be accepted. The first question is whether the right to life guaranteed by Article 21 does take in the right to education or not. It is then that the second question arises whether the State is taking away that right. The mere fact that the State is not taking away the right as at present does not mean that right to education is not included within the right to life. The content of the right is not determined by perception of threat. The content of right to life is not to be determined on the basis of existence or absence of threat of deprivation. The effect of holding that right to education is implicit in the right to life is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law."

40. In the decision reported in Bachan Singh v. State of Punjab (AIR 1982 SC 1325), it was held as follows:

"The Constitution of India is a unique document. It is not a mere pedantic legal text but it embodies certain human values, cherished principles and spiritual norms and recognises and upholds the dignity of man. It accepts the individual as the focal point of all B.A.7783 & 8607/2012.

development and regards his material, moral and spiritual development as the chief concern of its various provisions. It does not treat the individual as a cog in the mighty all powerful machine of the State but places him at the centre of the constitutional scheme and focuses on the fullest development of his personality. The various provisions of the Constitution are enacted for the purpose of ensuring the dignity of the individual and providing for his material, moral and spiritual development and they would be meaningless and ineffectual unless there is rule of law to invest them with life and force."

41. Before going into the merits of the contentions, one aspect may be noticed though has already been referred to. Section 306 Cr.P.C. deals with the powers of CJM, Metropolitan Magistrate and JFCM. While the power granted to the CJM and the Metropolitan Magistrate extends to granting pardon during investigation, enquiry and trial, as far as the courts after commitment are concerned, the right is confined to the time during enquiry and trial. In Section 307 Cr.P.C. where tendering of pardon is after the commitment of the case B.A.7783 & 8607/2012.

to the court concerned, pardon may be tendered any time before the judgment is passed. The differences between Sections 306 and 307 have already been noticed. The difference in the two provisions would indicate the fact that the legislature felt that a higher forum will exercise its powers with more care and caution. It was probably of that reason that the conditions contained in Section 306 Cr.P.C. are not imposed under Section 307 Cr.P.C.

42. A number of decisions have considered this anomalous position and in most of the decisions it is observed that if there is nothing more, there is gross discrimination and Section 306(4)(b) Cr.P.C. will have to be held arbitrary and violative of Article 21 of the Constitution. But in all those decisions, the court concerned stayed away from declaring the provision unconstitutional by taking recourse to Section 482 Cr.P.C. and went on to hold that in the light of the inherent power vested in the High Court which is not limited or circumscribed by Section 306(4)(b) Cr.P.C. in B.A.7783 & 8607/2012.

proper cases the person concerned could be released from custody.

43. Before going into those decisions, one contention raised by the learned Addl.D.G.P needs to be mentioned here. According to the learned Addl.D.G.P, the bar under Section 306(4)(b) Cr.P.C. is similar to the bar under Section 362 Cr.P.C., Section 19 of the Prevention of Corruption Act and Section 18 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. It is contended that the provisions above mentioned engraft absolute bar and when there is a specific bar, Section 482 Cr.P.C. cannot be taken aid of. For the above proposition, the learned Addl.D.G.P. relied on the decisions reported in S.C. Bahri v. State of Bihar (AIR 1994 SC 2420), Motilal v. State of M.P. (1994 KHC 1367), State of U.P. v. Johri Mal (2004 KHC 993), State of H.P. v. A Parent of Student of Medical College, Shimla (1985 KHC 646), Asif Hameed v. State of J and K. (1989 KHC 787), and Satya Narayan Sharma v. State of Rajasthan (2001 KHC 768). B.A.7783 & 8607/2012.

Learned Addl.D.G.P. drew the attention of this Court to the decision reported in Smithlal v. State of Kerala (2012 (4) K.L.T.

807), wherein it was held a follows:

"In the light of the clear interdiction and prohibition under S.306(4) Cr.P.C., it is not possible to entertain the contention that once tendered pardon, the person ceases to be an accused and thereafter under S.482 Cr.P.C., bail can be granted cannot be countenanced. At least in the case covered by S.306 Cr.P.C., where pardon is tendered by either the CJM or Metropolitan Magistrate or Judicial Magistrate of the First Class in the circumstances already made mention of, the interdiction under S.306(4) Cr.P.C. clearly applies and the court is precluded from releasing the petitioner from custody except possibly by Apex Court exercising its plenary powers."

44. Ratanlal and Dhirajlal in their work 'Commentary on the Code of Criminal Procedure' 18th Enlarged Edition 2006, Vol.2 at page 1087 under note 34 mentions as follows:

"The object of requiring an approver to remain in custody until the termination of the trial is not to punish B.A.7783 & 8607/2012.

the approver for having agreed to give evidence for the State, but to protect him from the wrath of the confederates he has chosen to expose, to prevent him from the temptation of saving his erstwhile friends and companions and to secure his person to await the judgment of the law. The temptation on the part of an approver to flee from justice as a result of threat or coercion is supposed to outweigh all inducements to remain growing out of pecuniary obligation, no matter to what amount."

The learned Authors further observes under Note 36 as follows:

"Reasonably expeditious trial is warranted by the provisions of the Code and in case this is not done and an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstance of each case, the High Court has always power to declare his detention either illegal or enlarge him on bail which exercising inherent powers. According to S.306(4)(b) the approver should be detained in custody till the termination of trial, if he is not already on bail, at the same time, in exceptional and reasonable cases the High Court has powers under S.482 to enlarge him on bail or in case there are B.A.7783 & 8607/2012.

circumstances to suggest that his detention had been so much prolonged which would otherwise outlive the period of sentence, if convicted, his detention can be declared to be illegal, as violative of Art. 21 of the Constitution. Detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Art.21 of the Constitution. Where neither no useful purpose will be served by his further detention nor administration of justice is likely to be adversely affected, the Court may release him on bail."

45. In the decision reported in Pascal Fernandes v. State of Maharashtra (AIR 1968 SC 594), it was held as follows:

"12. There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. There B.A.7783 & 8607/2012.

is nothing in the language of the section to show that the Special Judge must be moved by the prosecution. He may consider an offer by an accused as ion this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this case."

46. In the decision reported in State of U.P. v. Kailash Nath (AIR 1973 SC 2210), it was held as follows:

"15. The decisions referred to above clearly establish that the powers conferred on the District Magistrate and the other Magistrates under Section 337 are concurrent and that a District Magistrate, even after commitment, has power to tender pardon. The Proviso to Section 337 (1) makes it clear that the District Magistrate, in addition to the Magistrates referred to therein, has power to tender pardon during inquiry into or trial of the offence. Though the above decisions had no occasion to consider whether the District Magistrate has power to tender pardon,when the Magistrate enquiring into the offence has once refused, we are not able to find any such restriction placed upon the power of the District Magistrate by the wording of the section itself. As the power conferred by sub-section (1) of Section 337 on the different classes of Magistrates is concurrent and is of the same character it follows that B.A.7783 & 8607/2012.

the power to tender pardon can be exercised by every one of the authorities mentioned therein subject to the limitations specified in the section itself. The mere fact that a Magistrate of the First Class enquiring into the offence has declined to grant pardon as in the case before us, does not take away the power or jurisdiction of the District Magistrate to entertain a further application for grant of pardon. Though the District Magistrate has got power to consider a further application, nevertheless, it is needless to state that he will have due regard to the views expressed by the Magistrate for refusing to grant pardon. We must, however, state that judicial propriety requires "that if a higher authority had declined to tender pardon a lower authority should not grant pardon except on fresh facts which were not and could not have been before the higher authority when it declined to grant pardon. Even if pardon has been refused on one occasion, a further request may be made before the same Magistrate or the District Magistrate. But such a further request can be entertained and considered only if fresh or additional facts are placed by the party concerned.

16. The above principles will apply even to proceedings under Section 338. Even after commitment, a District Magistrate will have power to grant pardon, But B.A.7783 & 8607/2012.

if the court of Session had declined to grant pardon, the District Magistrate will not on the same facts entertain a similar application for grant of pardon. It is necessary to bear in mind the principles stated above so that the authorities under Sections 337 and 338 can exercise jurisdiction in harmony in order to further the interest of justice and avoid conflicting orders being passed."

47. The power of tendering pardon was considered in the decision reported in A.J. Peris v. State of Madras (AIR 1954 SC 616). In the decision reported in Phulan Shah v. State of Uttar Pradesh (2002 Crl.L.J. 1520), it was held as follows:

"9. In this case, pardon was granted by the Chief Judicial Magistrate under Section 306 Cr.P.C. The object of tendering pardon as contained in Section 306 Cr.P.C. is with a view to obtaining evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence for making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor in the commission thereof. The object of the provision is to allow pardon to be tendered in cases where grave B.A.7783 & 8607/2012.

offence is alleged to have been committed by several persons, so that with the aid of the evidence of the person pardoned, the offence could be brought book to the rest. This object is to secure the evidence of such a person.

10. The effect of tendering pardon has been considered by the Full Bench of Apex Court in the case of A.J. Peiris v. State of Madras, AIR 1954 SC 616. It was held in paragraph 9 of the said case as below:-

"We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased top be an accused and became a witness."

11. This aspect was also considered by the Apex Court in a recent decision in the case of Jasbir Singh v. Vipin Kumar Jaggi (2001 6 JT (SC) 419 and it was held in paragraph 29 of the said case as below:-

"The object of Section 64 of N.D.P.S. Act being the same as Section 307, it should logically follow that it may be exercised at any time during the course of the trial. It is true that the words 'immunity from prosecution' have been used, but the phrase does not mean anything more than the power to withdraw from prosecution. That, as has been noted earlier, can be exercised at any time in the course of the trial, but before judgment is delivered."

B.A.7783 & 8607/2012.

48. Now, one may turn to the decisions relied on by the parties in relation to their respective contentions. In the decision reported in Bhawani Singh v. State (AIR 1956 Bhopal

4), the Constitutional validity of old Section 337 Cr.P.C. was considered and its constitutionality was upheld. In the said decision it was held as follows:

"(5) It is within the powers of the Legislature to lay down which person can be released on bail or to whom bail cannot be granted. As the rule applies to all the approvers it cannot be said that it makes a differentiation and on this ground is contrary to the provisions of the Constitution of India."

One may at once notice that in the above decision, the High Court only dealt with the question regarding the classification and did not consider whether the classification had any nexus to the object sought to be achieved.

49. In the decision reported in Karuppa Servai v. Kundaru (AIR 1952 Madras 833), it was held as follows:

B.A.7783 & 8607/2012.

"Neither the enquiring Magistrate nor the Sessions Judge has got the right to set at naught the mandatory provisions of S.337(3) based on very salutary principles of public policy and public interest, and release an approver who is not on bail at the time of his acceptance of the tender of pardon, after the approver has deposed only in the committing Magistrate's Court, that is, in the course of the preliminary and, if committal ensues, before he has deposed at the trial in the Sessions Court truly and fully to matters within his knowledge. An approver cannot be put in the same position as an accused, and the provisions of Ss.497 and 498, cannot apply to him. Even if they apply, it would not be a fit case for releasing an approver on bail in a murder case."

50. In the decision reported in In re. Krishna Reddi (AIR 1952 Madras 839), it was held as follows:

"An approver who was in remand when he was tendered a pardon must be detained in custody under S.337(3) till the terminal of the trial if committal ensues or till the termination of the enquiry if committal does not ensue. The fact that he is said to have turned hostile is immaterial."

B.A.7783 & 8607/2012.

51. In the decision reported in Dev Krishnan v. State of Rajasthan (1984 Crl.L.J. 1142), it was held as follows:

"5. Section 439 Cr.P.C. cannot be called in aid by the petitioner. The provisions of S. 306(4)(b) are independent. They are not ancillary or subordinate to the provisions of S.439 Cr.P.C. The provisions of S.306 (4)(b) are of special nature and override the general provisions of bail contained in S.439 Cr.P.C. It is a well-settled principle of law that general provisions will give way and bow before the special provisions. In other words, S.306(4)(b) acts as an exception to S.439.

6. The position, which thus emerges out is that an approver, if he is not on bail at the time of accepting the tender of pardon, shall be detained in custody until the termination of the trial. During trial, there is no provision to release him on bail or otherwise.

7. It is true that the accused persons facing the trial have been released on bail. But that can hardly be taken as a valid ground to subvert or circumvent the mandatory provisions of S.306(4)(b)."

52. In the decision reported in Prem Chand v. State (1985 (1) Crimes 99), it was held as follows:

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"20. It will not be out of place to mention that when this matter was before Single Judge, it was argued on behalf of the petitioner that the provisions of Section 306(4) (b) in all its rigidity may land itself to constitutional challenge on the ground of being violative if Article 21 read with Article 14 of the Constitution for being arbitrary and unreasonable and in this background one of us while making the reference order felt that if this Section applies in all its rigidity, it may have to be struck down. But since we find that in cases of hardship, the approver can approach this Court for for release, we thought it fit not to go into the question of vires of this provision. In fact, but for the availability of this power with the High Court to release the approver perhaps the vires of Section 306(4)(b) of the Code of Criminal Procedure may be open to serious challenge."

53. In the decision reported in Noor Taki v. State of Rajasthan (1986 Crl.L.J. 1488), it was held as follows:

"15. Aforesaid perusal of the various authorities and on a careful consideration of S.306(4)(b) and S.439 Cr.P.C. we have absolutely no hesitation in holding that provisions of S.439 Cr.P.C. do not apply in a case of approver in view of the bar under S.306(4)(b) Cr.P.C. There can be no doubt that when the Legislature enacted B.A.7783 & 8607/2012.

S.306(4)(b), there was an object behind them and they did so because they were of the opinion that the approver must make a complete and correct disclosure of entire facts and circumstances. He must disclose to the court his knowledge which he possess due to his involvement in the crime. He has to give statement which is not only exculpatory but is inculpatory and in case he is released on bail, a situation may arise where relations of the caused or the accused themselves who are on bail, may win over the approver or threaten with dire consequences and he may abscond, there may be chances that he may completely be evaporated. When these provisions are enacted, at the same time, Legislature enacted the provisions about recording of evidence in Sessions case or in a warrant trial before a Magistrate. It was expected in a Sessions case that once the prosecution case starts, the learned Sessions Judge would record the evidence day to day till the trial is completed and in the Court of Magistrates the maximum period for detention of an accused in custody was limited to six months. Even during the investigation the Legislature gave a mandate that accused shall not be detained for more than 90 days in a murder case and for more than 60 days in other cases. Therefore, it was never contemplated that a trial will take inordinate delay B.A.7783 & 8607/2012.

in its termination and not only the accused but approver shall also be detained in custody. Accused has been given a right to apply for the bail but the approver not, as is apparent from the bare perusal of S.439 Cr.P.C,. Therefore, a circumstance may arise due to prolonged trial even when the approver has been examined and has supported the prosecution case, he may be detained in jail despite the fact that even the principal accused has been granted bail. It is in these circumstances that the question arises, whether an approver should be granted indulgence of being released from detention or his liberty should be curtailed for no fault on his part. Argument has been advanced by Mr.Dhankar that such a prolonged detention of the accused is violative of Art.21 of the Constitution, and further that S.306(4)(b) Cr.P.C. may be declared as directory and not mandatory.

16. Taking the second point first, there is no question of holding whether S.306(4)(b) is directory or mandatory as there is no specific provision in the entire Cr.P.C. which gives a right to the approver to apply for bail. As mentioned above S.439 Cr.P.C. does not apply to an approver. It applies only to 'a person accused of an offence'. An approver when once granted pardon, no more remains an accused unless he violates the conditions of pardon and subsequently tried for the B.A.7783 & 8607/2012.

offence. Hence as an approver his status is that of witness and not that of the accused. That being so, S.439 Cr.P.C. would not apply and consequently the discussion on the point whether S. 306(4)(b) is directory or mandatory, is merely an academic exercise and that too in futility. So far as the provision of S. 439 Cr.P.C. being violative of Art.21 of the Constitution, suffice to say that argument has been advanced only to be rejected. Approver, as a matter of right, cannot claim bail and as mentioned above there is no provision granting him bail. We have already discussed above the reasons which appear to us persuaded the Legislature not to make a provision for granting bail to an approver. But Art.21 of the Constitution can be looked into for seeking an aid to the contention that the scope of inherent powers of this Court should be so explained so as to cover the cases of an approver for consideration of bail in proper cases. In Francis Coralis Mullin's case, their Lordships of the Supreme Court defined the scope of Art.21 of the Constitution. In that case the petitioner had challenged his detention under COFEPOSA Act and an argument was advanced challenging the constitutional validity of certain clauses of the detention order. Their Lords held.

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"It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty. but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21. This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in Meneka Gandhi's case became the starting point the spring-board for a most spectacular evolution of the law culminating in the decisions in M. O. Hoskot v. State of Maharashtra, (1978 Cri LJ 1978), Hussainara Khatoon's case, (1980)1 SCC 81) the first Sunil Batra's case (1978 Cri LJ 1741) and the second Sunil Batra's case (1980 Cri LJ 1099).The position now is that Article 21 as interpreted in Maneka Gandhi's case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure which is B.A.7783 & 8607/2012.

reasonable, fair and just or it is otherwise."

19. A perusal of the aforesaid cases coupled with that of many other cases, like that of Sunil Batra v. Delhi Administration and yet another case of Hussainara Khatoon reported in AIR 1979 SC 1360, 23 have no hesitation in holding that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Art.21 of the Constitution. Reasonable expeditious trial is warranted by the provisions of the Criminal Procedure Code and in case this is not done and an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, this Court has always power to declare his detention either illegal or enlarge him to bail while exercising its inherent powers. Section 482 Cr.P.C. gives wide power to this court in three circumstances. Firstly, where the jurisdiction is invoked to give effect to an order of the Court. Secondly if there is an abuse of the process of the court and thirdly, in order to secure the ends of justice. There may be occasions where a case of approver may fall within latter two categories. For example in a case where there are large number of witnesses a long period is taken in trial where irregularities and illegalities have been committed by B.A.7783 & 8607/2012.

the Court and re-trial is ordered and while doing so, the accused persons are released on bail, the release of the approver will be occasioned for securing the ends of justice. Similarly, there may be cases that there may be an abuse of the process of the Court and the accused might be trying to delay the proceedings by absconding one after another, the approver may approach this Court for seeking indulgence. But this too will depend upon the facts and circumstances of each case. Broadly, the parameters may be given but no hard and fast rule can be laid down For instance, an approver, who has already been examined and has supported the prosecution version, and has also not violated the terms of pardon coupled with the fact that no early end of the trial is visible, then he may be released by invoking the powers under S.482 Cr.P.C., Section 482 Cr.P.C. gives only power to the High Court. Sessions Judge cannot invoke the provisions of the same. High Court therefore in suitable cases can examine the expediency of the release of an approver. We are not inclined to accept the contention of the learned Public Prosecutor that since there is a specific bar under S.306(4)(b) Cr.P.C. S. 482 Cr.P.C. should not be made applicable. Their Lordships of the Supreme Court has said in times without number, that there is nothing in the Code to fetter the powers of B.A.7783 & 8607/2012.

the High Court under S.482 Cr.P.C.. Even if there is a bar in different provisions for the three purposes mentioned in S.482 Cr.P.C. and one glaring example quoted is that though S.397 gives a bar for interference with interlocutory orders yet S.482 Cr.P.C., has been made applicable in exceptional cases. Second revision by the same petitioner is barred yet this Court in exceptional cases invoke the provisions of S.482 Cr.P.C. Therefore, S.482 Cr.P.C. gives ample power to this Court. However, in exceptional cases to enlarge the approver on bail, we answer the question that according to S.306(4)(b) Cr.P.C. the approver should be detained in custody till the terminal of trial, if he is not already on bail, at the same time, in exceptional and reasonable cases the High Court has power under S.482 Cr.P.C. to enlarge him on bail or in case there are circumstances to suggest that his detention had been so much prolonged, which would other outlive the period of sentence, if convicted, his detention can be declared to be illegal, as violative of Art.21 of the Constitution."

54. In the decision reported in T.P.Mohideen v State of Madras (AIR 1965 Madras 461), it was held as follows:

"2...... It will be totally unjustifiable to attack S.337 Cr.P.C. a provision enacted for the purpose of B.A.7783 & 8607/2012.

facilitating the securing of evidence to establish a criminal offence on the ground that that section favours on accused person, who is prepared to turn King's evidence, at the expense of the other accused. Even an accomplice so selected for the award of pardon, cannot be said to have obtained complete exoneration from guilt. He has to comply with the terms of the undertaking on which pardon had been granted, and in the event of his violating the undertaking, he will, at the discretion of the authorities and on the certificate of the Public Prosecutor, be made to face a trial in the court. Actually, the provision for terming pardon is extended even beyond the stage of investigation, to the stage of trial under Section 338 Cr.P.C. which provides that any time after commitment but before judgment is made, the court to which the commitment is made may, with a view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the committing Magistrate or the District Magistrate to tender a pardon on the same condition (as in S.337 Cr.P.C.) to such a person. But S. 338 is not the section to which reference is made in that writ petition.

3. The second contention of the learned counsel appearing in this writ petition for the petitioner, is that B.A.7783 & 8607/2012.

S. 337 Cr.P.C. offends Art.14 of the Constitution which states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. There is no question in the present case of the denial of equal protection to all the accused involved in the case. It is alleged that the petitioner is the third accused, in a criminal case in the court of the Sessions Judge, Madras, where they are being charged for offences of passing off spurious gold articles as genuine gold articles. The grievance of the petitioner appears to be that when there are a number of persons involved in an offence, discrimination within the meaning of Art. 14 would be involved, when one is given pardon under S. 337 Cr.P.C. and the others are prosecuted. This clearly involves a misconception of the scope of Art.11. This is not a case of failure to give protection to the accused who are prosecuted. It is a case of refraining from prosecution of one accused for certain reasons enjoined by the statute in the interests of the successful prosecution of certain other persons, and getting the best evidence possible against them. It appears to me that the reference to Art. 14 of the Constitution for this purpose, is wholly otiose.

4. The third contention of the petitioner is that Gurunathan to whom pardon has been granted is the B.A.7783 & 8607/2012.

principal offender, while the petitioner and some others, who are arraigned as accused in the sessions court, Madras, are only abettors or persons concerned in the offence in a relatively minor way. This argument overlooks the terms of S.387 itself, which provided that pardon could be given to a person concerned in the offence whether as principal or abettor. Reference made by the learned counsel for the petitioner, to a decision of the Patna High Court in Sheobhajan Abir v. Emperor AIR 1921 Pat. 499 appears to be wholly irrelevant, because that was a case where the person to whom pardon was given appeared to have been the real culprit, while the persons who were prosecuted were not so. There was no question of a principal offendor and one who was only an abettor, in that case. Further, any defect or impropriety in the grant of pardon, will be a ground on which the accused can attack the evidence of the approver as and when he gives evidence, for the purpose of reducing the value of his testimony. It will be certainly no ground for quashing the order of granting pardon. The result of any such order will be to put a brake in giving effect to the statutory provisions for investigation of criminal offences, and it may also serve to obstruct the course of justice."

B.A.7783 & 8607/2012.

55. In the decision reported in Ayodhya Singh v. State (1973 Cri.L.J. 768), it was held as follows:

"2. Section 337(3) Criminal P.C. Runs as follows:-

"Such person unless he is already on bail, shall be detained in custody until the termination of the trial."

The word 'shall' has been used in sub-section (3). It is true that the nature of any provision whether descretionary or mandatory is not to be construed from the word 'shall' or 'may' used therein. In certain cases, the shall' can be regarded to be not of a mandatory nature if on consideration of enactment as a whole it appears that the discretion has been left open for the Court. A bare reading of sub-section (3) would reveal that the general powers of the court regarding granting of bail had been taken away by this sub-section. In the sub-section the Legislature has not only used the word 'shall' but it is preceded by the words 'unless he is already on bail'. These words clearly suggest that the Legislature has prohibited the court from passing contrary orders. The word 'shall' in the present context must be deemed to be of mandatory nature. According to sub-section (3), an approver has to be kept in custody till the termination of the trial. He is not to be allowed to be let off on bail when he is not on bail at B.A.7783 & 8607/2012.

the time he is tendered pardon. It is not the case of the petitioner that he was on bail on the date he was made approver or tendered pardon. The case of the petitioner stands fully covered by sub-section (3) of S.337 Criminal P.C. The petitioner has stated that a long period of time would be spent in concluding the trial as the prosecution has cited 174 witnesses in the case. Delay in disposal of the case cannot be considered a valid ground where the law prohibits the release of the approver fill the termination of the trial."

56. In the decision reported in In re Mukesh Reddy (AIR 1958 AP 165), it was held as follows:

"Sub-section (3) reads:-

"Such person unless he is already on bail, shall be detained in custody until the termination of the trial."

The word 'shall' in the sub-section is primarily obligatory and it casts a duty on a court to detain an accused, to whom pardon was tendered, in custody until the termination of the trial. But, it does not make such detention the condition of the validity of the pardon. It is designed to achieve the object for which pardon is tendered and to see that it is not frustrated.

The accused, to whom pardon is tendered being an infamous person susceptible of easy accessibility, may B.A.7783 & 8607/2012.

be tampered with or the co-accused if on bail or persons interested in them who would necessarily be infuriated by his treachery may attempt to do away with him. It may be that the provision has been enacted to protect him and to preserve his evidence untampered with till the termination of the trial. His release on bail in contravention of the sub-section is illegal and may be liable to be set aside by a superior court but does not touch the validity of the pardon."

57. In the decision reported in A.L. Mehra v. State (AIR 1958 Punjab 72), it was held as follows:

"Sub Section (3) of S.337 declares that an approver, unless he is already on bail, shall be detained in custody until the termination of the trial. The object of requiring an approver to remain in custody until the termination of the trial is not to punish the approver for having agreed to give evidence for the State, but to protect him from the wrath of the confederates he has chosen to expose, to prevent him from the temptation of saving his erstwhile friends and companions and to secure his person to await the judgment of the law. Hence, the argument that if an accused can be released on bail, there is no reason why a person who has been granted a pardon should not be accorded a similar facility, is B.A.7783 & 8607/2012.

devoid of force, for the provisions of law cannot be extended by analogy.

No pardon can, under S.337, Cr.P.C., be granted in respect of an offence under S.5 of the Official Secrets Act as this offence is punishable only with imprisonment which may extend to two years, or in respect f an offence under S. 120B of the Penal Code as this offence is not triable exclusively by the High Court or Court of Session.

The expression "the offence" in S.337(2) refers to the offence in respect of which pardon has been granted under the provisions of subs.(1). Where, therefore, the offences in respect of which the accused are being prosecuted are not offences in respect of which pardon has been given under sub-s. (1) no duty is imposed upon the State to examine the so-called approver, or upon such approver to give evidence, in this capacity as an approver. He can give evidence only in his capacity as a witness.

And as such an approver is an approver only for the purposes of the case in respect of which pardon was granted and that he can be detained in custody till the termination of the trial of the case under S.5 of the Official Secrets Act and he cannot be kept in the confinement till the termination of the trial of the said B.A.7783 & 8607/2012.

case.

The provisions relating to bail contained in Ss. 497 and 498 do not override the provisions of sub-s.(3) of S.337: hence it is not within the competence of the Court to admit an approver to bail when the law declares in unambiguous language that an approver shall not be released until the decision of the case. The provisions contained in sub-s. (3) of S.337 must be read as an exception to the general provisions contained in Ss. 497 and 498 for it is an old and familiar principle that the special provision overrides the general.

The use of the word "shall" ion sub-2. (3) of S.337 indicates that the Legislature has imposed a statutory and an imperative obligation on the Court to detain an approver in custody until the conclusion of the trial even when the prosecution of a case has been unreasonably.

Sub-section (3) of S.337 implies that there is a trial in progress and its object is to secure the evidence of the approver for such trial, If there is no such trial and no likelihood of such a trial then cessante reatione lex ipsa cessa. And in such a case the inherent powers of the High Court can, to prevent the abuse of the process of the Court, be exercised in favour of a person who has been in confinement for several months.

B.A.7783 & 8607/2012.

I am in general agreement with the view taken by the learned Sessions Judge and am of the opinion that A.L.Mehra is not an approver for the purposes of this Case, that the proceedings in the Court of the additional District Magistrate are not inquiry proceedings but trial proceedings, that the Delhi Courts have jurisdiction to hear and determine the case against the prisoners and that it is not necessary to supply the coples of documents as a matter of right. Mehra should be released on bail on furnishing security to the satisfaction of the District Magistrate, Delhi. I would order accordingly."

58. In the decision reported in S.C. Bahri v. State of Bihar (AIR 1994 SC 2420), it was held as follows:

"34. As regards the contention that the trial was vitiated by reason of the approver Ram Sagar being released on bail contrary to the provisions contained in clause (b) of sub -sec.(4) of S. 306 of the Code, it may be pointed out that Ram Sagar after he was granted pardon by the learned Magistrate by his order dated 9- 1-85, he was not granted bail either by the committing Magistrate or by the learned Additional Judicial B.A.7783 & 8607/2012.

Commissioner to whose Court the case was committed for trial. The approver Vishwakarma was, however, granted bail by an order passed by the High Court of Patna, Ranchi Bench in Criminal Misc. Case No. 4735/86 in pursuance of which he was released on bail on 21-1- 87 while he was already examined as a witness by the committing Magistrate on 30-1-86 and 31-1-86 and his statement in Sessions trial was also recorded from 6-9-86 to 19-11-86. It is no doubt true that clause (b) of S. 306(4) directs that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. The dominant object of requiring an approver to be detained in custody until the direction of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime to whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from the custody. It is for these reasons that clause (b) of S. 306(4) casts a duty on the Court to keep the approver under detention till the termination of the trial B.A.7783 & 8607/2012.

and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior Court, but such a release would not have any effect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar."

59. It may be noticed here that the procedure to be followed when a person is tendered pardon under Section 306 Cr.P.C. and under Section 307 Cr.P.C. are different. Or, in other words, two procedures are prescribed in respect of tendering of pardon to a person. This aspect was challenged before the courts as violative of Article 14 of the Constitution because two different procedures are prescribed which has no justification. But the said challenge was repelled by the decision reported in M. Chhagganlal v. Grater Bombay B.A.7783 & 8607/2012.

Municipality (AIR 1974 SC 2009), wherein it was held as follows:

"33. It is, therefore, clear from these decisions that where there are two procedures for determination and enforcement of a liability, be it civil or criminal or revenue, one of which is substantially more drastic and prejudicial than the other, and they operate in the same field, without any guiding policy or principle available from the legislation as to when one or the other procedure shall be followed the law providing for the more drastic and prejudicial procedure would be liable to be condemned as discriminatory and void. This principle has held that field for over twenty years and it is logically sound and unexceptionable. ........The arbitrary choice of two alternative procedure is, therefore, not given to the same authority and there is accordingly no violation of Article 14. This contention of the respondents is in our opinion, having regard to the substance of the guarantee of equality, untenable and cannot be accepted. It proceeds on a misconception of the true principle on which this Court has struck down laws providing for special procedure which is substantially more drastic and prejudicial than the ordinary procedure. Principle as well as precedent, B.A.7783 & 8607/2012.

clearly appreciated, would remove the mist of misunderstanding surrounding this facet of constitutional equality. The principle which emerges from the decisions of this Court - and we have already discussed some of the important decisions - is that where persons similarly circumstanced are exposed to two procedures for determination of liability, one being more drastic and prejudicial than the other and no guidelines are provided by the legislature as to when one procedure shall be followed or the other, so that one person may be subjected to the more drastic and prejudicial procedure while the other may be subjected to the more favourable one, without there being any valid justification for distinguishing between the two, the law providing for the more drastic and prejudicial procedure is liable to be struck down as discriminatory. It is not necessary, in order to incur the condemnation of the equality clause, that the initiation of both procedures should be left to the arbitrary discretion of one and the same authority. What the equality clause strikes at is discrimination, howsoever it results. It is not constricted by any constitutional dogma or rigid formula. There is an infinite variety of ways in which discrimination may occur. It may assume multitudinous forms. But wherever it is found and howsoever it arises, it is within the B.A.7783 & 8607/2012.

inhibition of the equality clause. Where, therefore, as between persons similarly situated, one may be subjected to one procedure while another may be subjected to the other, without there being any rational basis for distinction and one procedure is substantially more drastic and prejudicial than the other, unjust discrimination would result, irrespective of whether the arbitrary choice of initiation of the two procedures is vested in the same authority or not. Indeed to the person subjected to the more drastic and onerous procedure it is immaterial whether such procedure is put into operation by one or the other organ or agency of the Government or the public authority. It is poor comfort to him to be told he is treated differently from others like him, but the differential treatment emanates from one organ or agency of the Government or the public authority as distinct from another. His rejoinder would immediately be that it makes no difference, because, whichever be the organ or agency of the Government or the public authority which initiates the differential treatment against him, it is traceable to the broad source of State power or power of the public authority. The unequal treatment by reason of the adoption of the substantially more drastic and onerous procedure would be meted out to him by the Administration in its larger B.A.7783 & 8607/2012.

sense - may be legally particularised in the shape of different instrumentalities - and he would suffer all the same. We are here dealing with the common man and when action is initiated against him for determining his liability to eviction, it would be incomprehensible to him to make a distinction between Municipal Commissioner and Municipal Corporation or Collector and Government. It would be nothing short of hypertechnicality to say that action against him is initiated not by the Municipal Corporation or the Government but by the Municipal Commissioner or the Collector. The constitutionality of a statutory provision cannot turn on mere difference of the hands that harm, though both belong to the Government or the Municipal Corporation, for otherwise it would be easy to circumvent the guarantee of equality and to rob it of its substance by a subtle and well-manipulated statutory provision vesting the more drastic and prejudicial procedure in a different organ of the Government or public authority than the one in whose hands lies the power to initiate the ordinary procedure. That would be disastrous. We must look at the substance and not the mere form. In fact in Suraj Mull Mohta's case (AIR 1954 SC 545) and Shree Meenakshi Mills case (AIR 1955 SC 13) the special procedure under the Income-tax Investigation Commission Act could be initiated by the B.A.7783 & 8607/2012.

Central Government while the ordinary procedure under the Income-tax Act could be initiated by an altogether different authority, namely, the Income-tax Officer, and yet it was held that Section 5, sub-section (4) in one case and Section 5, sub-section (1) in the other were violative of Article 14 since the two procedures one substantially more drastic and prejudicial than the other, operated in the same field without any guidelines being provided by the legislature as to when one or the other shall be adopted. Moresoever, it is not correct to say that it is the Municipal Commissioner who would initiate the special procedure set out in Chapter VA. The Municipal Commissioner would be moved by the Estate Officer of the Municipal Corporation to issue a notice under Section 105-B, sub-section (2) just as a Civil Court would be moved by the Municipal Corporation to issue process against the occupant. Alternatively, the matter can also be viewed from a slightly different standpoint. When a Municipal Commissioner issues notice under S.105-B, sub-section (2) initiating the special procedure against an occupant, he really acts on behalf and for the benefit of the Municipal Corporation - he seeks to enforce the right of the Municipal Corporation. Therefore, it is really the Municipal Corporation which avails of the special procedure set out in Chapter VA.

B.A.7783 & 8607/2012.

The scope and content of the aforementioned rule against discrimination in matters of procedure cannot, therefore, be narrowed down or its applicability in the present case obviated on the ground suggested by the respondents."

60. In the decision reported in Iqbal Singh v. State (AIR 1977 SC 2437), it was held as follows:

"Where, however, a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the trial could be tested, which would have been available to the accused had the proceeding been initiated in the court of a Magistrate who under Sub-sec. (2-B) of S. 337 of the Code is required to send the case for trial to the Special Judge after examining the approver. But we do not find anything in Sub-sec. (2-B) of S. 337 to suggest that it affects in any way the jurisdiction of the Special Judge to take cognizance of an offence without the accused being committed to him for trial. Sub-section (2-B) was inserted in S. 337 in 1955 by Amendment Act 26 of 1955. If by enacting Sub-sec. (2-B) in 1955 the legislature sought to curb the power given to the Special B.A.7783 & 8607/2012.

Judge by S. 8 (1) of the Criminal Law Amendment Act, 1952, there is no reason why the legislature should not have expressed its intention clearly. Also, the fact that the approver's evidence cannot be tested against any previous statement does not seem to us to make any material difference to the detriment of the accused transgressing Article 14 of the Constitution. The Special Judge in any case will have to apply the well established tests for the appreciation of the accomplice's evidence. This Court in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay, (AIR 1974 SC 2009) held that the mere availability of two procedures would not justify the quashing of a provision as being violative of Article 14 and that "what is necessary to attract the inhibition of the Article is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other. ......" In our opinion there is no such qualitative difference in the two procedures whether a witness is examined once or twice does not in our opinion make any such substantial difference viz. that one of them could be described as more drastic than the other. The appeal is accordingly dismissed."

B.A.7783 & 8607/2012.

61. In the decision reported in Anil Kumar v. State of Kerala (1996(1)K.L.T. 147), it was held as follows:

"37. With regard to the Court of Sessions, the power to grant pardon and the procedure for the same is prescribed under Section 307 Cr. P.C. which reads as follows:

"307. At any time after commitment of a case but before judgment is passed, the court to which the commitment is made may, with a view to obtaining at the trail the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person."

The condition is not mentioned in Section 307 Cr. P.C., but mentioned only in Section 306 (1) of Cr. P.C. The only condition which is contained in the said Section is that "the person to whom pardon is granted should make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. Recording a statement under Section 164 is not a "condition' for granting pardon.

38. The argument of counsel for the appellants is based on the provisions of Section 308 (2) Cr. P.C. which B.A.7783 & 8607/2012.

states that any person accepting the tender of pardon and recording by a Magistrate under Section 164 or by a Court under sub-section (4) of Section 306 may be given in evidence against him at such trial. The trial which is dealt with in this section is prosecuting the accused to whom conditional pardon is granted for wilfully concealing anything essential or for giving false evidence. This argument also is far-fetched as the wording in sub-section (2) of Section 308 Cr. P. C. is very clear which obliges the Magistrate alone to record a statement under Section 164 and such an obligation is not there for the Court of Sessions. The Code has made a distinction between the Magistrate and the Court of Sessions for obvious reasons. If the Code does not enjoin a duty on the Court of Sessions to examine the first accused under Section 164 Cr. P.C., the argument that as he was not examined under Section 164 Cr. P .C., he should not have been treated as an approver and ought not have been examined as a witness cannot be accepted.

39. We gain support to the proposition stated above from the decision of the Orissa High Court in State v. Bigyan Ma//ik (1975 Crl. L. J. 1937). The Orissa High Court held that the phrase 'same condition' in Section 307 Cr. P. C. obviously makes a reference to B.A.7783 & 8607/2012.

Section 306 (1) under which the Magistrate may tender pardon to the person supposed to have been concerned in an offence on condition of his making a full and true disclosure. The requirement of Section 306(4)(a) that the person accepting a tender of pardon has to be examined as a witness in the Court of the Magistrate and in the subsequent trial, if any, is not a condition subject to which pardon is granted. When pardon has been granted by the Sessions Judge under Section 307, it is not necessary to comply with the requirement of Section 306 (4) in so far as it requires that the person to whom pardon has been tendered should be examined as a witness in the Court of the Magistrate taking cognizance of the offence and also in the subsequent trial, if any. It also held that examination of a person to whom pardon is tendered is not a condition of the tender of pardon. Therefore, it cannot be held that when for the first time at the Sessions stage pardon is tendered, the committal becomes vitiated and must betaken afresh in order that the requirement of sub-section (4) (1 )(a) of Section 306 Cr. P.C. may be complied with. We are in perfect agreement with the decision of the Orissa High Court. So, it follows that the argument of counsel for the appellants has no legs to stand on and it is only to be rejected. We hold that there is no irregularity or illegality B.A.7783 & 8607/2012.

committed by the Court of Sessions in not examining the first accused before he was examined as P.W.3. We also note that the power of recording a statement under Section 164 Cr. P. C. is given to the Magistrate and not to a Court of Sessions."

62. Going by the decisions which seek aid of Section 482 Cr.P.C. to sustain the constitutionality of Section 306(4)(b) Cr.P.C., it could be seen that in all those cases bail was granted after the approver had been examined during trial. The question posed in these cases is whether pending trial such person can be released from custody.

63. At this point of time, one may refer to the contentions raised by the learned Senior Counsel Shri.O.V.Radhakrishnan on behalf of the petitioners. It is contended by the learned Senior Counsel that the word 'shall' appearing in Section 306(4)(b) Cr.P.C. need not be considered as mandatory and is not intended to be treated as mandatory, but it is only directory in nature. It is well settled that merely B.A.7783 & 8607/2012.

because the word 'shall' is used or that the section is negatively worded by themselves are not grounds to hold that the provision is mandatory.

64. In the decision reported in Collector of Monghyr v. Keshav Prasad (AIR 1962 SC 1694), it was held as follows:

"12. We feel unable to accept the submission of learned Counsel that in the context in which the words ''for the reasons to be recorded by him" occur in S. 5A and considering the scheme of Ch. II of the Act, the requirement of these words could be held to be otherwise than mandatory. It is needless to add that the employment of the auxiliary verb "shall" is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basic of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection B.A.7783 & 8607/2012.

for the safeguarding of the right of liberty of person or of property which the action might involve."

65. In the decision reported in M/s. Rubber House v. M/s. Excelsior Needle Industries Pvt. Ltd. (1989) 2 SCC 413, it was held as follows:

"31. The word "shall" in its ordinary import is obligatory. Nevertheless, the word "shall" need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the concerned provisions, regard must be had to the context, subject matter and object of the statute in question."

66. In the decision reported in State of Punjab v. Shamlal Murai (AIR 1976 SC 1177), it was held as follows:

"7. It is true that, in form, the rule strikes a mandatory note and, in design, is intended to facilitate a plurality of judges hearing the appeal, each equipped with a set of relevant papers. May be, there is force in the view taken by the Full Bench that certain basic B.A.7783 & 8607/2012.

records must be before the Court along with the appeal if the Court is to function satisfactorily in the exercise of its appellate power. In this sense, the needs of the rule transcend the directory level and may, perhaps, be considered a mandatory need. The use of 'shall' - a word of slippery semantics - in a rule is not decisive and the context of the statute, the purpose of the prescription, the public injury in the event of neglect of the rule and the conspectus of circumstances bearing on the importance of the condition, have all to be considered before condemning a violation as fatal.

8. It is obvious that even taking a stern view, every minor detail in Rule 3 cannot carry a compulsory or imperative import. After all, what is required for the Judges to dispose of the appeal is the memorandum of appeal plus the judgment and the paper book. Three copies would certainly be a great advantage, but what is the core of the matter is not the number but the presence, and the over-emphasis laid by the Court on three copies is, we think, mistaken. Perhaps, the rule requires three copies and failure to comply therewith may be an irregularity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not B.A.7783 & 8607/2012.

three copies of each. This omission or default is only a breach which can be characterised as an irregularity to be corrected by condonation on application by the party fulfilling the condition within a time allowed by the Court. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, Courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. Be that as it may, and ignoring for a moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of Rule 3 is not that three copies should be furnished, but that copies of all the three important documents B.A.7783 & 8607/2012.

referred to in that rule shall be produced. We further feel that the Court should, if it thinks it necessitous, exercise its discretion and grant further time for formal compliance with the rule if the copies fall short of the requisite number. In this view and to the extent indicated,we overrule the decision in Bikram Dass's case AIR 1975 Punj and Har 1 (FB)."

67. In the decision reported in Narayana Rao v. State of Andhra Pradesh (AIR 1952 SC 737), it was held as follows:

"10. It will, thus, appear that in cases exclusively triable by a Court of Session, it is the duty of the Magistrate while holding a preliminary inquiry, to satisfy himself that the documents referred in S. 173 have been furnished to the accused and if he found that the police officer concerned had not carried out his duty in that behalf, the Magistrate should see to it that that is done.

After the accused have been furnished with the necessary documents, it is now required to record evidence of only such witnesses for the prosecution as had witnessed the actual commission of the offence charged against the accused and of such other witnesses as he may consider necessary in the interests of justice.

B.A.7783 & 8607/2012.

From what has been said above, it is clear that the Munsiff-Magistrate did record the evidence as required by sub-s. (4) of S.207-A. But it has been found by the High Court on the admission of the Government Advocate, that the provisions of sub-s. (3) of S. 207-A, had not been complied with. It is not clear as to whether all the documents contemplated by S.173 (4), quoted above, had not been furnished to the accused or documents other than the statements of witnesses had not been so supplied. The judgment of the High Court, would appear to indicate the latter, but we shall proceed on the assumption that there was an entire omission to carry out the provisions of sub-s. (4) of S. 173, read with sub- s. (3) of S. 207-A. Does such an omission necessarily render the entire proceedings and the trial null and void; or is it only an irregularity curable with reference to the provisions of S. 537 (a) of the Code?In other words, are the provisions of S. 173 (4), read with S. 207-A (3) mandatory or only directory? There is no doubt that those provisions have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard the interests of accused B.A.7783 & 8607/2012.

persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished.

It has rightly been contended on behalf of the appellant that it was the duty of the Magistrate to see that the provisions aforesaid of the Code, have been fully complied with. Magistrates, therefore, have to be circumspect, while conducting such proceedings, to see to it that accused persons are not handicapped in their defence by any omission on the part of police officers concerned, to supply the necessary copies.

But we are not prepared to hold that noncompliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial. The word "shall" occurring both in sub-s. (4) of S.173 and sub-s. (3) of S.207-A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of S.173, should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the Court of Session, wholly ineffective.

Instead of simplifying the procedure, as was intended by the amending Act, as indicated above, the B.A.7783 & 8607/2012.

result contended for on behalf of the appellant, will, necessarily, result in re-opening the proceedings and trials which may have been concluded long ago. Such a result will be neither conducive to expeditious justice nor in the interest of accused persons themselves.

Certainly, if it is Shown, in a particular case, on behalf of the accused persons that the omission on the part of the police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the Court may re-open the proceedings by insisting upon full compliance with the provisions of the Code.

In our opinion, the omission complained of in the instant case, should not have a more far-reaching effect than the omission to carry out the provisions of S. 162 or S. 360 of the Code. Courts in India, before such matters were taken to their Lordships of the Judicial Committee of the Privy Council, had taken conflicting views on the scope of S. 537 of the Code in curing such omissions as aforesaid.

In the case of Abdul Rahman v. Emperor, 54 Ind App 96 : (A I R 1927 P C 44) (A), their Lordships of the Judicial Committee, had to consider the effect of non-

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compliance with the provisions of S. 360 of the Code. After considering the relevant provisions of the Code, their Lordships came to the conclusion that it was a mere irregularity which could be cured by the provisions of S. 537. In the case of Pulukuri Kotayya v. Emperor, 74 Ind App 65: (A I R 1947 P C 67) (B), the Judicial Committee had to consider the effect of breach of the statutory provisions of S. 162 of the Code. The following observations of their Lordships, at pp. 75 -76 (of Ind App): (at pp.69-70 of A I R) are a complete answer to the arguments advanced on behalf of the appellant before us, and we respectfully adopt them:

"When a trial is conducted in a manner different from that prescribed by the Code (as in Subramanya Iyer v. Emperor, 28 Ind App 257 (PC) (C), the trail is bad and question of curing an irregularity arises; but if the trail is conducted substantially in the manner prescribed by the code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S.537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of B.A.7783 & 8607/2012.

their Lordships' Board in 54 Ind App 96: (A I R 1927 P C

44) (A), where failure to comply with S.360, Criminal P.C. was held to be cured by Ss.535 and 537. The present case falls under S. 537, and their Lordships hold the trial valid notwithstanding the breach of S. 162."

68. In the decision reported in Central Bureau of Investigation v. R.S. Pai (2002(2) K.L.T. 149), it was held as follows:

"7. From the aforesaid sub-sections, it is apparent that normally the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report of chargesheet, it is always open to the investigation officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecution and the context in which police officer is required to forward to the Magistrate, all the documents or the relevant extracts thereof on which prosecution B.A.7783 & 8607/2012.

proposes to rely, the word 'shall' used in sub-s. (5) cannot be interpreted as mandatory but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under S. 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. The State of Andhra Pradesh (1958 SCR 283 at 293) and it was held that the word 'shall' occurring in sub-s. 4 of S.173 and sub-s. 3 of S. 207A is not mandatory but only directory. Further, the scheme of sub-s. (8) of S.173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained."

69. In the decision reported in Devinder Singh v. State of Punjab (AIR 2008 SC 261), it was held as follows:

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"43. Rule 4 of the Rules employs the word 'shall' not once place but twice. Ordinarily, it is imperative in character. No reason has been shown before us as to why it should be held to be directory provision particularly when the Land Acquisition Act is an expropriatory legislation."

70. In the decision reported in M/s. R.N.Jadi and Brothers v. Subhashechandra (AIR 2007 SC 2571), it was held as follows:

"14. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words - shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form."

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71. In the decision reported in Vidyawati Gupta v. Bhakti Hari Nayak (AIR 2006 SC 1194), it was held as follows:

"50. The intention of the legislature in bringing about the various amendments in the Code with effect from 1st July, 2002 were aimed at eliminating the procedural delays in the disposal of civil matters. The amendments effected to Section 26, Order IV and Order VI Rule 15, are also geared to achieve such object, but being procedural in nature, they are directory in nature and non-compliance thereof would not automatically render the plaint non-est, as has been held by the Division Bench of the Calcutta High Court."

72. In the decision reported in Ram Deen Maurya (Dr.) v. State of U.P. ((2009) 6 SCC 735), it was held as follows:

"It is true, in Rule 4(6) of the Rules, the rule-making authority has used the expression "shall"

and the word "shall" in its ordinary import is obligatory. Nevertheless, the word "shall" need not be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the provisions concerned, B.A.7783 & 8607/2012.

regard must be hand to the content, subject-matter and object of the statute in question."

73. In the light of the fact that the prohibition under Section 306(4)(b) Cr.P.C. does not appear in Section 307 Cr.P.C., a question may arise whether it is possible for the court to which the case is committed and which tenders pardon to a person is competent and is empowered to release such a person from custody. Though the question in a way came up for consideration in the decision reported in Shammi Firoz v. National Investigation Agency (2010 (4) K.L.T. 409), this court chose to take recourse to Section 482 Cr.P.C. to grant relief to the petitioner.

74. So far as the decision in Smithlal v. State of Kerala (2012(4) K.L.T. 807) is concerned, that decision was rendered in an application under Section 439 Cr.P.C. and not under Section 482 Cr.P.C. and the decision was rendered in that context even though a sweeping observation has been made that in view of the specific bar under Section 306(4)(b) B.A.7783 & 8607/2012.

Cr.P.C., Section 482 Cr.P.C. cannot be invoked. No specific issue as to the applicability of power under Section 482 Cr.P.C. was agitated in that case and the court had no opportunity to consider the issue from that angle. Therefore, that decision cannot be taken as laying down the principle that in view of the bar under Section 306(4)(b) Cr.P.C., there is a total prohibition and that Section 482 Cr.P.C. cannot come to the aid of the person concerned.

75. As rightly pointed out by the learned Senior Counsel for the petitioners, once pardon is tendered to an accused, or a person contemplated under Section 306 or Section 307 Cr.P.C., then he loses his character as an accused and adorns the status of a witness. Except for the prohibition under Section 306(4)(b) Cr.P.C., it may not be possible to detain that person under the Code.

Shri.O.V.Radhakrishnan, learned Senior Counsel, seems to be justified in his submission that but for the bar under Section 306(4)(b) Cr.P.C., the person concerned could not have been B.A.7783 & 8607/2012.

detained in custody. The further contention that it is not intended to curtail the liberty of the person, but intended to provide protection in deserving cases and also to ensure that the accused person do not take undue advantage of the position appears to be quite sound and reasonable. The submission of the learned Senior Counsel Shri.O.V.Radhakrishnan that it is not always necessary in all cases that when a person is tendered pardon under Section 306 Cr.P.C., he should be detained without anything more is not the intention of the legislature also seems to be correct. Only in cases where the situation demands or the court feels that it is necessary to detain the person for justifiable reasons, the provision can be invoked. That seems to be the proper way to understand the provision. It must be remembered that as far as the reasons for detaining a person under Section 306 (4)(b) Cr.P.C. are concerned, it is equally applicable to a person to whom pardon is tendered under Section 307 Cr.P.C. also. So also, the same conditions apply to a person to whom B.A.7783 & 8607/2012.

pardon is tendered under Section 306 Cr.P.C. and who is already on bail. The legislature must be credited with the knowledge of these facts and in that context and under such circumstances the provision, namely, Section 306(4)(b) Cr.P.C. will have to be understood. If a person who is already on bail could continue on bail when pardon is tendered to him under Section 306 or 307 Cr.P.C., then it defies one's logic why a restriction as in the nature of Section 306(4)(b) Cr.P.C. should be imposed in the case of a person who is unfortunate to be not on bail when pardon is tendered to him. An anomalous situation may arise if one is to simply accept the proposition that a person in custody should continue to be in custody till the end of the trial adopting a strict interpretation of the provision. For example, in a case there may be distinct incidents. It may so happen when some of the accused might have been granted bail and some might not have been granted bail. It may also happen that even though an accused is granted bail, he is not able to execute the bond and B.A.7783 & 8607/2012.

therefore he has to remain in custody. If in such a case, for one portion of the incident, a person is granted pardon and if he is already on bail, he can continue to be on bail. If for another incident forming part of the same transaction, a person who is in custody is granted pardon, to say that he should languish in custody till the end of the trial seems to be unjustified, unreasonable and arbitrary and against the notions of justice.

76. The provision, namely, Section 306(4)(b) Cr.P.C. cannot be taken as one curtailing the liberty and freedom of a person, but should be treated as an enabling and empowering provision which the courts concerned can take aid of in a case where circumstances warrant a situation to detain a person who has been granted pardon in further custody if he is not already on bail. It is difficult to comprehend that without anything more, the mere fact that the person who is tendered pardon who is not on bail should continue in custody for no justifiable reason.

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77. It is well settled by now that there is no universal principle to determine while construing a statute as to if it is directory or mandatory. The burden is on the courts to ascertain the real intention of the provision and for that purpose, the statute has to be construed as a whole. Several factors may have to be considered to determine the real character and nature of the Statute. There can be no doubt that the absolute enactment must be literally obeyed and fulfilled. Normally, a statute is considered to be mandatory if it imposes conditions, and its satisfaction is essential for the validity of the Act.

78. N.S.Bindra's in his work 'Interpretation of Statutes', 10th Edition, Reprint 2012, at page 984, observed as follows:

"The classification of statutes as mandatory and directory is useful in analysing and solving the problem of what effect should be given to their directions. But it must be kept in mind in what sense the terms are used, B.A.7783 & 8607/2012.

that they are only descriptive of the effect that, as it has been determined, should be given to the statutory provision, and that there is no essential difference in statutes whereby their mandatory and directory character can be determined as a means by the legislature to be regarded; but where the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them. In doing so they must necessarily consider the importance of the literal and punctilious observance of the provision in question to the object the legislature had in view. If it is essential, it is mandatory and a departure from it is fatal to any proceeding to execute the statute or to obtain the benefit of it."

At page 988, it is mentioned as follows:

"So a mandatory statute according to Crawfod, may be defined as one whose provisions or requirements, if not complied with, will render the proceedings to which it relates illegal and void, while a directory statute is one where non-compliance will not invalidate the proceedings to which it relates."

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79. Maxwell on 'Interpretation of Statutes' at page 373 observes as follows:

"It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and, when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the Legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."

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The above passages, taken along with the decisions referred to above, would show that merely because the word 'shall' is used in a Statute, it is not obligatory for the court to treat it as mandatory. Several factors as already noticed and as could be observed from the decisions and passages referred to above will have to be considered before reaching a conclusion whether strict compliance is necessary.

80 It must be noticed that outlook of court regarding the scope and ambit of Section 306(4)(b) Cr.P.C. has undergone considerable change. Initially the courts were very reluctant to delete the rigor of the Section and it was construed to be absolute in its terms. With the passage of time and developments in constitutional law, the courts began to adopt a moderate approach and invoked the inherent power under Section 482 to save Section 306(4)(b) from the vice of constitutional attack.

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81. If one is to go by the object and purpose of Section 306(4)(b) Cr.P.C., as already noticed, it is difficult to come to the conclusion that it casts an absolute prohibition or absolute bar on the court to release the person who has been tendered pardon from detention merely because he has not been fortunate enough to go on bail.

82. There may be some doubt regarding the actual character of the person who is tendered pardon. Of course, the moment he is tendered pardon, he transforms into the position of a witness. But it is difficult to say that he altogether sheds the character of an accused. It will be appropriate to understand the position that the status of an accused, who is tendered pardon, his position as an accused remains under an eclipse as long as he adorns the character of a witness and satisfies the conditions of pardon. Once he fails to do so under Section 306 Cr.P.C., his status as an accused person revives and subsequent events follow. B.A.7783 & 8607/2012.

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83. Two questions then arise for consideration. They are (i) if it is to be held that Section 306 (4)(b) Cr.P.C. is not mandatory and is only directory, can the court concerned grant bail? and (ii) even if it is considered to be mandatory, has it overriding power over Section 482 Cr.P.C.?

84. As far as the first question is concerned, grant of bail is only under Sections 436, 437 and 439 Cr.P.C. Section 436 Cr.P.C. relates to bailable offence. Section 437 Cr.P.C. deals with grant of bail to a person accused of, or suspected of the commission of any non-bailable offence who is arrested or detained without warrant. Section 439 Cr.P.C. deals with a person accused of an offence and is in custody. A reading of the above provisions will leave one in no doubt that it relates to an accused person in custody. It has already been noticed that once pardon is tendered to a person, he ceases to be an accused and occupies the status of a witness and Sections 437 and 439 Cr.P.C. may not be available. Therefore, under Section 437 Cr.P.C., even though there is no such B.A.7783 & 8607/2012.

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prohibition as contained in Section 306(4)(b) Cr.P.C. is available, still it may not be possible for the committing court to release the petitioner from custody since Section 439 Cr.P.C. cannot be invoked in such cases.

85. This leads us to the second question whether the power under Section 482 Cr.P.C. can be invoked. True, normally, it is stated that if there is a specific prohibition under the Code, the inherent power cannot be invoked to override the specific prohibition. But the object and purpose of Section 306(4)(b) Cr.P.C. has already been noticed.

86. Woodroffe in his 'Commentaries on Code of Criminal Procedure', 3rd Edition, Vol.2 at page 1220 observed as follows:

"The discretionary powers of the High Court to grant bail to approvers cannot but be sparingly exercised. Approvers should, as far as possible, be kept out of temptation either of absconding or of being induced to resile from their admission. Though by admission of their guilt they escape punishment it is not B.A.7783 & 8607/2012.

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unbearable hardship on them if they are detained in custody pending the trial of their co-accomplices. Where a prisoner made a statement on a promise of pardon and then without fulfilling the conditions of promise of pardon absconded so that no pardon was ever granted, his statement could not be used as evidence against him in his subsequent capture and trial."

The scope of the power available under Section 482 Cr.P.C., has been considered in a number of decisions. Before going into the decisions, it may be useful to refer to Section 482. It reads as follows:

"482. Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

87. It is well settled by now that Section 482 of Cr.P.C. does not confer any new power on the court. It only declares the power which already existed in the Code. The B.A.7783 & 8607/2012.

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declaration was necessary to dispel any doubt that apart from the powers enumerated in the Code the courts enjoyed no other power. Section 482 of the Cr.P.C. in fact only recognizes inherent power in every court to exercise its powers to do justice. The exercise of power under Section 482 of Cr.P.C. is contemplated under three circumstances. They are,

(i) to give effect to an order under the Code,

(ii) to prevent abuse of process of court,

(iii) to secure the ends of justice.

Among the above three, (ii) and (iii) work in both ways. Those powers are exercised either to prevent injustice being done to a party as well as ensuring that a just cause is not thrown out unjustly and that grievance of a person does not go unredressed.

88. One may now refer to the decisions in this regard. In the decision reported in Dinesh Dutt Joshi v. State of Rajasthan (2001) 8 SCC 570, it was held as follows:

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"4. Section 482 of the Code of Criminal Procedure confers upon the High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well established principle of law that every court has inherent power to act ex debito justitiae - to do that real and substantialjustice for the administration of which alone it exists or to prevent abuse of the process of the court. The principle embodied in section is based upon the maxim: quando lex aliquid alicuiconcedit, conceder videtur id quo resipsaesse non potest ie. When the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Cxourt under this section are however required to be reserved, as far as possible for extraordinary cases."

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89. In the decision reported in Jeffrey J. Diermeier v. State of West Bengal (2010) 6 SCC 243), it was held as follows:

"8. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (1) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."

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90. In the decision reported in Gian Singh v. State of Punjab (2012 (4) K.L.T. 108), it was held as follows:

"57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and B.A.7783 & 8607/2012.

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have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to B.A.7783 & 8607/2012.

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continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

91. Following the principle laid down in the above decisions and the scope and ambit of the power available under Section 482 Cr.P.C., it cannot be said that the so-called prohibition under Section 306(4)(b) Cr.P.C. is a fetter on the power of the court under Section 482 Cr.P.C. to render justice to the parties and to do such acts as are necessary to secure the ends of justice. The said provision is sufficient, in appropriate cases, for the courts to grant such relief as the situation warrants. If that be so, when it is found by the superior court that the continued detention of a person who has been tendered pardon by virtue of Section 306(4)(b) B.A.7783 & 8607/2012.

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Cr.P.C. is unnecessary, nothing fetters the court from releasing such a person from detention or custody as the case may be to ensure that his personal liberty is not affected nor is he being detained unnecessarily and unjustifiably.

92. It will be only appropriate to refer to the report of the 48th Law Commission in this regard. In AIR Manual Civil and Criminal, 6th Edition, Volume 18, Manohar and Chitaley at page 235 reference is made to the 48th Law Commission Report and the relevant portion is at page 238, which reads as follows:

"24.21. Under sub-section (3), an approver, unless he is already on bail, has to be detained in custody until the termination of the trial. The trying Magistrate or Sessions Court has no power to release the approver on bail. Though this may seem harsh particularly when the trial is prolonged, we do not think the provision should be changed. In extraordinary cases of hardship, the approver can approach the High Court whose powers as to bail are very wide."

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93. The above passage gives an insight into understanding the scope and power of Section 482 Cr.P.C.. Therefore, the contention raised by the learned Addl.D.G.P. that in view of the bar under Section 306(4)(b) of Cr.P.C., the powers under Section 482 Cr.P.C. cannot be invoked cannot stand scrutiny. If the inherent power under Section 482 Cr.P.C. could be made use of to do justice in appropriate cases, then it becomes necessary to consider the constitutional validity of Section 306(4)(b) Cr.P.C. and as has been done in several decisions already referred to.

94. Before summarizing the findings, it will be only appropriate and infact necessary to refer to a particular aspect projected by the Amicus Curie Shri. Sunny Mathew. Learned counsel pointed out that the threat infact to the witness does not cease with the giving of evidence and it continues even thereafter. Referring to the law in various countries like USA, Canada, United Kingdom, Australia, Croatia and Thailand, learned counsel contended that all those countries have an B.A.7783 & 8607/2012.

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enactment for the protection of witnesses. Unfortunately in our country, we do not have one of that sort. It is understood that the Law Commission of India as early as in 1996 pointed out the necessity for a comprehensive legislation in this regard. But things remain as such. However, Section 17 of the National Investigation Agency Act, 2008 and Section 44 of the Unlawful Activities (Prevention) Act, 1967 takes note of this aspect and provides protection to witnesses to some extent. That is of some solace.

The position can be summarised as follows:

(i) Section 306(4)(b) Cr.P.C. is an enabling provision which empowers the authorities concerned to detain a person who has been tendered pardon.

(ii) The authorities mentioned in Section 306 Cr.P.C.

are precluded from releasing the person who has been tendered pardon from custody.

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(iii) The embargo under Section 306(4)(b) Cr.P.C. cannot be imported into Section 307 Cr.P.C.

(iv) In view of the fact that a person tendered pardon stands discharged and occupies the status of a witness, Sections 437 and 439 Cr.P.C. are not available to release him from custody.

(v) Section 306(4)(b) Cr.P.C. cannot be taken as an absolute prohibition or fetter on the inherent power of the High Court under Section 482 of Cr.P.C. in appropriate cases to release the approver from detention on such conditions as the court deems fit.

(vi) In view of the above position, challenge to the constitutionality of Section 306(4)(b) Cr.P.C. need not be considered.

In the result, these applications are allowed (B.A. No.8607 of 2012 is treated as one under Section 482 Cr.P.C.) B.A.7783 & 8607/2012.

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and the interim order releasing the petitioners from detention on execution of bond is affirmed and in addition to the said condition, the following conditions are also imposed.

i) The petitioners in each of these cases shall make themselves available for trial and also shall appear before the court concerned as and when required to do so.

ii) The petitioners shall not in any way try to influence the witnesses or tamper with the evidence.

I acknowledge the valuable assistance rendered by Senior Counsel Shri. O.V.Radhakrishnan appearing for the petitioners, Shri. Sunny Mathew, Amicus Curie, and Shri. Tom Jose Padinjarekkara, the learned Addl.D.G.P., who took pains to highlight various aspects.

P. BHAVADASAN, JUDGE sb.

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