Rajasthan High Court - Jaipur
Noor Taki Alias Mammu vs State Of Rajasthan on 26 February, 1986
Equivalent citations: AIR1987RAJ52, 1986(1)WLN310
Author: N.M. Kasliwal
Bench: N.M. Kasliwal
JUDGMENT Dave, J.
1. We are called upon to answer a question referred to us by the Division Bench of this Court by its order dt. Dec. 5, 1985, as to whether an approver can be detained for indefinite period even when principal accused in the case has been released on bail.
2. Petitioner had filed an application under Section 439, Cr.P.C. before the Single Bench of this Court and on Aug. 28, 1985, interim bail was granted to him under Section 482, Cr.P.C., since the petitioner's only brother had expired and there was none in the family to perform the rituals. The Court while granting bail under Section 482, Cr.P.C. said in the order that application under Section 439, Cr.P.C., does not lie in a case where provisions of Section 306(4)(b), Cr.P.C. are attracted. However, jurisdiction could be invoked under Section 482, Cr.P.C. Accused was directed to surrender on Oct. 28, 1985. On this day the application was pressed on merits and Hon'ble Mehta J. in his order dt. Oct. 28, 1985, while again granting interim bail referred the case to a Division Bench as there were two views of this Court; one in the case of Ayodhya Singh v. State of Rajasthan, 1972 WLN 436 : (1973 Cri LJ 768) and another in Dev Kishan v. State of Rajasthan, 1983 Rajasthan LR 625 : (1984 Cri LJ 1142). Thereafter, the matter went before the Division Bench and the Division Bench further referred the case before this larger bench as 3 different Judges had taken different views while interpreting the provisions about granting bail to the approver.
3. Mr. M. I. Khan, Public Prosecutor appearing on behalf of the State, opposed the bail application on the ground that an approver can never be enlarged on bail if he was not on bail at the time when pardon was granted to him. He referred to the provisions of Section 306(4), which run as under ;
Section 306(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."
He submits that Cl. (b) of Sub-section (4) of Section 306 is mandatory and accused has to be detained in custody until the termination of the trial if he was not already on bail. He submits that in Chap. XXXIII of the Cr.P.C., where the provisions as to bail and bail bonds have been incorporated under Sections 437 and 439, Cr.P.C., bail can only be granted to a person accused of an offence. It is submitted that while enacting the provisions of Section 439, Cr.P.C. the Legislature used different phraseologies in this section itself. For grant of bail the words used are, 'that any person accused of an offence and in custody be released on bail' but in Sub-section (2) for cancellation the words used are 'any person who has been released on bail under this Chapter, can be arresf'-'J and committed into custody', thus an approver, who is a witness and not an accused cannot be granted bail under the provisions of Section 439, Cr.P.C. but if he is already on bail, his bail can be cancelled under Sub-section (2). It is submitted by Mr. Khan that apart from Section 439, Cr.P.C. there is no other provision in the Cr.P.C. which empowers the Court to grant bail to any person detained. It is submitted that Section 482, Cr.P.C. can also not be pressed into service because Legislature has given a clear mandate in form of Section 306(4)(b) that the approver shall be detained in custody until the termination of trial and in this view of the matter detention of the approver in jail cannot be brought under the purview of inherent powers under Section 482, Cr.P.C. and such case would not be covered to prevent an abuse of the process of the Court or otherwise to secure the ends of justice. It is submitted that when the Legislature enacted Section 306(4)(b), it was conscious of the fact that there is a public policy behind.it. It is submitted that firstly, there is a safety of the approver himself because when he makes the disclosure of the facts and involves the other accused persons, if he is released on bail, then he can either be killed or an attempt can be made on his life or he can be threatened so as to change his statements. Secondly, if he is released on bail, there is every chance of his becoming hostile or not being available to the Court for evidence. It is also submitted that there is also expediency concerning the law and order. Learned Public Prosecutor has relied on A. L. Mehra v. State. AIR 1958 Punj 72 : (1958 Cri LJ 413), Bhawani Singh v. State, AIR 1956 Bhopal 4 : (1956 Cri LJ 44), Karuppa Servai v. Kundaru alias Muniandi, AIR 1952 Mad 833 : (1953 Cri LJ 45),PajerIa Krishna Reddi. AIR 1952 Mad 839 : (1953 Cri LJ 50). Haji Ali Mahomed v. Emperor, AIR 1932 Sind 40 : (1932-33 Cri LJ 906), In re Dagdoo Bapu, AIR 1922 Bom 177(1) : (1921-22 Cri LJ 620) and Dev Kishan's case (1984 Cri LJ 1142) (Raj) (supra).
4. Replying to the contentions of the learned Public Prosecutor, Mr. Dhankar, appearing on behalf of the petitioner, submitted that an approver cannot be put in the worse circumstances than an accused in a case. He ought not be detained in jail particularly after he has been examined in the Court and has supported the prosecution version. He submits that the prolonged delection of an approver is violative of Article 21 of the Constitution. He submits that word 'shall' appearing in Section 306(4)(b) should be read as 'may' or in the alternative approver can be released on bail exercising the inherent powers under Section 482, Cr.P.C. He submits that Article 21 of the Constitution has been given new dimensions and their Lordships of the Supreme Court time and again reiterated that person should not be detained in jail without due process of law and for an indefinite period. He has placed reliance on Francis Coralis Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 : (1981 Cri LJ 306). Kadra Pehadiya v. State of Bihar, AIR 1981 SC 939 : (1981 Cri LJ 481); Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1360 : (1979 Cri LJ 1036), Hussainara Khatoon v. Home Secretary, State of Bihar; Patna, AIR 1979 SC 1377 : (1979 Cri LJ 1052), Lallu v. State, 1979 Raj LW 465, Feriyad v. State of Rajasthan, 1983 Raj Cri C 194 : (1985 Cri LJ NOC 75).
5. We have given our earnest consideration to the rival contentions and have looked into the cases cited at the bar.
6. Mr. Khan, learned Public Prosecutor, relied on the following passage in A. L. Mehra's case (1958 Cri LJ 413) (Punj) (supra) :
"Sub-sec. (3) of Section 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 devoid of force, for the provisions of law cannot be extended by analogy."
"The High Court has no inherent power to admit an approver to bail even if he is able to produce facts at the hearing sufficient to entitle him to bail. Further, the inherent power, if any, has been expressly taken away by the enactment of Sub-section (3) of Section 337."
"The use of the word "shall" in Sub-section (3) of Section 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 the case has been unreasonably delayed to the oppression of the prisoner and even when the delay is occasioned by the failure to present the challan or to deal with the case expeditiously."
In this judgment itself their Lordships have observed, "sub-s. (3) of Section 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 ratione lex ipsa cessat. In re Dagdoo Bapu (AIR 1922 Bom 177(1) at p. 177(1)(j)) : ILR 46 Bom 120 at p. 123. This is an eminently fit case in which the inherent powers of this Court 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 and who was recently released on parole at the urgent request of the Solicitor-General. I direct that the approver shall be released on bail on furnishing security to the satisfaction of the District Magistrate." Thus, their Lordships were clearly of the view that there may be cases where inherent powers may be invoked and observations in this authority support the contentions of the petitioner.
7. In Bhawani Singh's case (1956 Cri LJ 44) (Bhopal) (supra) though, their Lordships held that:
"Section 337(3) is mandatory. It can be given no other meaning except that an approver already detained in custody, cannot be released on bail for the period the trial has not been concluded. Even if the termination of the trial takes a long period, the approver will have to be detained in custody."
Yet, they observed, in case the prosecution is slack and for no justification delays the inquiry, the approver would be entitled to some leniency and he would be at liberty to move this Court again when the facts would be reconsidered in view of the fact that the directions being given by this Court are being disregarded. Thus, the Court conceived of a situation where it may be essential to grant indulgence to an approver.
8. In Karuppa Serwai's case (1953 Cri LJ 45) (Mad) (supra), the Court has held as under:
"So, it is clear to me that an approver cannot be put in the same position as an accused, and the provisions of Sections 497 and 498, Cr.P.C., cannot apply to him. Like a lunatic who does an act constituting the crime but is not convicted and punished for it because he was of unsound mind at the time he committed the act, an approver is also a person who is "directly or indirectly concerned in or privy to the offence" under Section 337(1), Cr.P.C., and is let off without conviction or punishment because he accepts the tender of a pardon and makes a true and full disclosure of all the facts relating to the crime within his knowledge. So, even if Sections 497and 498, Cr.P.C apply, it would not be a fit case for releasing an approver on bail in murder case like this."
Yet, at the end of the order the Court observed that the enquiry or trial (if committal ensues) of the case may be expedited as far as practicable, as the learned counsels for approver says that there are nearly 60 witnesses, and many exhibits, and this approver has the prospect of being kept in custody for several months unless ah order for expedition is given by me. Thus, the Court was conscious of the fact that there could be a delay in trial and approver may have to continue in jail and keeping in mind, order expediting the trial was passed. There may be situations where despite the order expediting the trial may not conclude within the given period, then what will be the fate of the approver, remains a question mark. In the same volume similar observations have been made by the same learned Judge in Pajerla Krishna Reddi's case, (1953 Cri LJ 50) (Mad) (supra).
9. Mr. Khan, in support of his argument, that when there is an express bar under Section 306(4)(b), Section 482 cannot be made applicable, relied on the following observations of the Supreme Court : --
"Assuming that the Sessions Judge can exercise inherent powers, he cannot pass the order of the re-hearing of the appeal in the exercise of such powers when Section 369 read with Section 424 of the Code, specifically prohibits the altering or reviewing of its order by a Court. Inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing."
In this case their Lordships of the Supreme Court were considering a case where the learned Sessions Judge had passed an order dismissing an appeal filed by the accused against his conviction under Section 324, IPC. This dismissal of appeal was made in the absence of the appellant or his counsel but at the same time the learned Judge had observed in the order that he had perused the order of the learned Magistrate and had seen the record, he thereafter found no ground for interference in the order. In that situation, since there is a complete bar for review of a judgment or a final order under Code of Criminal Procedure, their Lordships made the aforesaid observations. Their Lordships had not been considering the circumstances where there was either a question of abuse of the process of the Court or to secure the ends of justice, was posed.
10. Mr. Khan has also relied on the observations in Smt. Sooraj Devi v. Pyare Lal, (1981) 1 SCC 500 : (1981 Cri LJ 296), where also their Lordships of the Supreme Court held that a clerical or arithmetical error is an error occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of calculation, and a clerical error is a mistake in writing or typing, and then their Lordships held :
"The inherent power of the Court under Section 482 cannot be exercised for doing that which is specifically prohibited by the Code such as under Section 362, Cr.P.C. In this case an order was sought to be reviewed in proceedings where while convicting an accused, an order was passed for restoration of possession of the property to the complainant. Therefore, an identical situation did not arise before their Lordships. In Dev Kishan's case (1984 Cri LJ 1142) (Raj) (supra) Justice Byas declined to enlarge the accused on bail as there was no provision to do so. He held that Section 439 cannot be called in question by the petitioner. The provisions of Section 306(4)(b), Cr.P.C. are independent. They are not ancillary or subordinate to the provisions of Section 439, Cr.P.C. The provision of Section 306(4)(b) are of special nature and override the general provision of bail contained in Section 439, Cr.P.C. It is well settled principle of law that general provision will give way and bow before the special provisions. In other words, Section 306(4)(b) acts as an exception to Section 439, Cr.P.C. There can be no dispute in the preposition made by Justice Byas in this judgment. Neither any argument was raised before him about S, 482, Cr.P.C. nor he said anything about it in this judgment.
11. In Ayodhya Singh v. State, 1973 Cri LJ 768 this Court held that the provisions of Section 337(3) are mandatory and unless the approver is already on bail he must be detained in custody till the termination of the trial and the Court has no power to release him on bail on his becoming an approver. Justice Modi, who delivered this judgment was also not called upon to consider Section 482, Cr.P.C., but he also observed at the end of the trial that:
"The attention of the learned Sessions Judge is however drawn to the fact that the petitioner has been behind the bars for a long time and it is high time that he should expedite the trial and dispose of the case as soon as possible."
Thus, he also observed the expeditious completion of the trial.
12. In Fariyad's case (1985 Cri LJ NOC 75) (supra), this Court held that:
"In the present case, Fariyad approver is in jail since 7-5-82. His statement has been recorded and completed on 26-5-83. It has been argued that he has fully supported the case of the prosecution. Because, the other witnesses are yet to be examined, and the delay is on account of non-receipt of the material exhibit from the Forensic Laboratory, and unless the gun is before the Court, the other witnesses cannot be examined. It means that the petitioner approver will continue to be detained in jail for an indefinite period. This is not the intention of the Legislature. His statement has been completed and he is not required by the prosecution any more. As such, it is not justified to detain him in jail indefinitely. Though the provisions of Section 439, Cr.P.C. do not apply in such cases, but this Court has certainly inherent powers under Section 482, Cr.P.C. to order the release of the approver in the circumstances referred to above."
In the aforesaid case his Lordship relied on a decision of Bombay High Court reported in Dagdoo Bapu's case (1921-22 Cri LJ 620) (supra) and Punjab High Court's decision in A.L. Mehra's case (1958 Cri LJ 413) (supra).
13. In Dagdoo Bapu's case (supra), in an enquiry into an offence of murder a pardon was tendered to the accused and evidence was recorded under Section 512 : the validity of the tender of pardon was under question, and a reference was made to the High Court in this respect. It was desired that one of the accused in the case absconded and there were no prospects of the early completion of the trial. Then their Lordships considered the various aspects and held as under :
"We would point out, however, that there is no occasion for revision of the order. The tender of a pardon does not prevent the prosecution from proceeding against an approver as an accused person. If the prosecution is so revived it is for the approver to plead the pardon as a defence; see Emperor v. Kothia (1906) ILR 30 Bom 611 : (1906-4 Cri LJ 346) and Emperor v. Sabar Akunjj, (1915) ILR 42 Cal 756 : (1915-16 Cri LJ 120). It is open to the prosecution to proceed against the approver Dagdoo on the ground that he has not performed the condition of the pardon in that he gave false evidence under Section 512, Criminal Procedure Code.
Or on the other hand, if the prosecution do not desire to proceed further with the case against the principal offender Dhondoo, the Magistrate has power to discharge the approver from custody. Sub-sec. (3) of Section 337, Criminal Procedure Code, 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 ratione lex ipsa cessat."
14. In A. L. Mehra's case (1958 Cri LJ 413) (Punj) (supra) we have already quoted the observations, which have been relied by Justice G. K. Sharma in his judgment.
15. Aforesaid perusal of the various authorities and on a careful consideration of Section 306(4)(b) and Section 439, Cr.P.C. we have absolutely no hesitation in holding that provisions of Section 439, Cr.P.C. do not apply in a case of approver in view of the bar under Section 306(4)(b), Cr.P.C. There can be no doubt that when the Legislature enacted Section 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 possesses 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 accused 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 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 ts apparent from the bare perusal of Section 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 Article 21 of the Constitution, and further that Section 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 Section 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 Section 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 offence. Hence as an approver his status is that of witness and not that of the accused. That being so; Section 439, Cr.P.C. would not apply and consequently the discussion on the point whether Section 306(4)(b) is directory or mandatory, is merely an academic exercise and that too in futility. So far as the provision of Section 439, Cr.P.C. being violative of Article 21 of the Constitution, suffice it 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 grnating bail to an approver. But Article 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 (1981 Cri LJ 306) (SC) (supra), their Lordships of the Supreme Court defined the scope of Article 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 Lordships held, "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 Righs. .....
The position now is that Article 21 as interpreted in Maneka Gandhi's case (supra) required 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 reasonable, fair and just or it is otherwise."
17. In Kadra Pehadiya's case (1981 Cri LJ 481) (SC) (supra), Hon'ble Mr. P. N. Bhagwati, J. (as he then was) sitting with Hon'ble A. P. Sen, J. considered a letter dt. Nov. 28, 1980 addressed by one Dr. Vasudha Dhagamwar, a researcher and Social Scientist working in the Santhal Parganas of the State of Bihar. It represents one more instance of the utter callousness and indifference of our legal and judicial system to the undertrial prisoners languishing in the jails. Their Lordships before issuing the notice passed a detailed order and considered the scope of Article 21 of the Constitution and held "We fail to understand why our justice system has become so dehumanised that lawyers and judges do not feel a sense of revolt at caging people in jail for years without a trial. It is difficult to comprehend how the Sessions Judge could have forgotten that he had called the petitioners to the Court for commencement of the trial on 30th Aug., 1977 and thereafter done nothing in the matter."
18. Their Lordships referred to Hussainara Khatoon's case (1979 Cri LJ 1036) (SC) (supra) wherein it has been held that speedy trial is a fundamental right of an accused implicit in Article 21 of the Constitution. Hussainara Khatoon's case, which has been reported in AIR 1979 SC 1377 : (1979 Cri LJ 1052) is a landmark in judicial history of this country. Cases of several undertrial prisoners, who are languishing in jail for years together, were considered. Some of them were such where the undertrial prisoners had remained in jail without trial for periods which are longer than the maximum term for which they would have been convicted. They were directed to be released even without obtaining a bail bond. His Lordship Mr. Justice Bhagwati speaking for the Court, said :
"We fail to see what moral or ethical justification could the State have to detain these unfortunate persons for such unreasonably long periods of time without trial. We feel a sense of relief that they should once again be able to breathe the air of freedom. But we find that there are still many more undertrial prisoners who fall within this category of persons who have been in detention for periods longer than the maximum term without their trial having been commenced."
There are 59 undertrial prisoners whose names and particulars are set out in this chart and we direct that they should be released forthwith as their continued detention is clearly illegal and in violation of Article 21 of the Constitution.
19. A perusal of the aforesaid cases coupled with that of many other cases, like that of Sunil Batra v. Delhi Administration: 1980 Cri LJ 1099 : (AIR 1980 SC 1579), and yet another case of Hussainara Khatoon reported in AIR 1979 SC 1360 : (1979 Cri LJ 1036), we 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 Article 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 the Court and a 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 Section 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 Section 306(4)(b), Cr.P.C., Section 482, Cr.P.C., should nut be made applicable. Their Lordships of the Supreme Court have said in limes without number, that there is nothing in the Code to fetter the powers of the High Court under Section 482, Cr.P.C. Even if there is a bar in different provisions for the three purposes mentioned in Section 482, Cr.P.C., and one glaring example quoted is that though Section 397 gives a bar for interference with interlocutory orders yet Section 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 invokes the provisions of Section 482, Cr.P.C. Therefore. Section 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 Section 306(4)(b), Cr.P.C. 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 power under Section 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 otherwise outlive the period of sentence, if convicted, his detention can be declared to be illegal, as violative of Article 21 of the Constitution.
20. Having answered the reference as above, we have perused the facts of this case.
21. The occurrence relates to July. 1983, and the accused was arrested on Mar. 12, 1984. He moved an application before the Chief Judicial Magistrate seeking pardon on April 27, 1984 and his application was allowed by the learned Chief Judicial Magistrate and he was declared as an approver. The petitioner's statement as an approver has been recorded in the Court of Session during trial as is apparent from the order of the Additional Sessions Judge No. 4, Jaipur City, Jaipur. It is not denied that he has fulfilled all the conditions on which pardon was granted to him. He is in detention for more than 22 months now. Accused persons have already been released on bail, and we feel in these circumstances approver has been put in the circumstances worse than those who are facing the charge-sheet. The end of the trial is not in sight as more than 20 witnesses are yet to be examined as stated before us. In these circumstances, we confirm the order of interim bail granted by Hon'ble Mehta, J. by his order dated October 28, 1985 and direct that the approver shall continue to remain on bail during the pendency of the trial on entering into a personal bond in the sum of Rs. 5,000/- (Rs. five thousand) to the satisfaction of Deputy Registrar (Judicial), Rajasthan High Court, Jaipur Bench, Jaipur.