Indian Kanoon - Search engine for Indian Law

INDEX TO THE JUDGMENT FACTUAL BACKGROUND ......................................................................................... 2 SUBMISSIONS MADE BEFORE THIS COURT................................................. 3 ISSUE IN QUESTION ................................................................................................... 5 ANALYSIS & FINDINGS.............................................................................................. 5 I. Tender of Pardon under Section 306 of Cr.P.C. ........................................... 5 II. Bar to Grant of Bail under Section 306(4)(b) of Cr.P.C. vs. High Court's Inherent Power under Section 482 of Cr.P.C. ................................ 7 III. Tender of Pardon to Petitioner in this Case ................................................ 13 IV. Whether this Court should exercise its Judicial Discretion in Favour of Petitioner? ....................................................................................................... 14 a. Exercise of Judicial Discretion......................................................................... 14 b. Prosecution's No Objection............................................................................. 15 c. Medical Condition of the Petitioner ............................................................... 15 d. Provision of Section 308 of Cr.P.C. ................................................................ 16 THE DECISION ............................................................................................................ 17 SWARANA KANTA SHARMA, J.

ANALYSIS & FINDINGS I. Tender of Pardon under Section 306 of Cr.P.C.

10. In the present case, the petitioner had filed an application dated 20.12.2023, under Section 306 of Cr.P.C. before the learned ASJ, wherein he had submitted that he wanted to assist the investigating agency by becoming an approver and by divulging the true facts before the Court, and in view of the same, his statement may be recorded and he may be granted pardon.

***

6. Ratios of the judgments (Supra) make the legal proposition manifestly clear, that the dominant object of keeping an approver to be detained in custody till the termination of trial is not intended to punish the approver for having come forward to give evidence in support of prosecution, but to protect him from possible indignation, rage and resentment of his associates in a crime to whom he was chosen to expose, and such provision is based on public interest, there cannot be any quarrel with legal position that in terms of section 306(4)(b) Cr.pc bail to approver who was in custody cannot be granted, however, in an appropriate case High Court can release the approver on bail in exercise of it‟s inherent powers u/s 482 Cr.pc. ...... Sub-Section 4 of Section 306 Cr.pc cannot be interpreted in a manner which would defeat the mandate contained in Article 21 of the Constitution of India dealing with life and personal liberty of an individual being of paramount importance in human existence. What purpose it is to be achieved by keeping an approver in custody during the trial after he satisfactorily complied with the terms and conditions of tender of pardon, he gets right to be released and cannot be allowed to remain in jail custody indefinitely. The dominant object is, that once an accused is granted pardon under the relevant provisions of the Code of Criminal Procedure, he ceases to be an accused and appears witness for the prosecution (vide AIR 1989 SC 589)."

"12. Once an accused person is granted pardon he ceases to be an accused person and becomes a witness for the prosecution. Since an approver is not a person accused of an offence, Sections 437 and 439 Cr.P.C. cannot be pressed into service by an approver for his enlargement on bail. In such a contingency, notwithstanding the bar under Section 306(4)(b), Cr.P.C. it has been held in the decisions relied on by the petitioner that the High Court can in a given case release the approver on bail by invoking the inherent power under Section 482 Cr.P.C.. Formerly, Courts were very rigid in enforcing the legislative mandate under Section 306(4)(b) corresponding to Section 337(3) of the old Code. (See A.L. Mehra v. State, AIR 1958 Punjab 72; Bhawani Singh v. The State, AIR 1956 Bhopal 4; In re Pajerla Krishna Reddi, 1953 Cri LJ 50 (Madras); Haji Ali Mohammed v. Emperor, AIR 1932 Sind 40; Dev Kishan v. State of Rajasthan, 1984 Cri LJ 1142 (Rajasthan)). But after the fundamental right guaranteed under Article 21 of the Constitution of India has been laid on a wider canvass through the epoch making judicial pronouncements of the Apex Court, Courts have diluted the rigour of Section 306(4)(b) Cr.P.C. to make it in conformity with the rights under Article 21 of the Constitution of India. That explains the merging view that despite the embargo under Section 306(4)(b) Cr.P.C., the High Court may in a given case release the approver on bail by calling into aid its inherent power under Section 482 Cr.P.C."