Whether court should revoke pardon granted to approver on the ground that he is not co-operating during investigation?

The Certificate, of the Public Prosecutor, in the present case,

does not allege that, before the Court, the respondent concealed

anything essential, or gave false evidence. In fact, a holistic reading of

the application, filed by the petitioner before the learned Special

Judge, reveals that the grievance of the petitioner is, essentially, that

the respondent has not cooperated during investigation, and has

withheld material in his possession. Mr. Handoo is right when he

contends that non-co-operation, during investigation, is not one of the

circumstances contemplated, by Section 308 (1), as justifying issuance

of certificate by the Public Prosecutor. Quite obviously, this is because

the condition, whereunder pardon is granted to the accomplice, is

candour before the court, and not candour before the investigating

officer. Non-cooperation with the investigative process, therefore, is

irrelevant, insofar as Section 308 (1) is concerned. So long as the

approver does not conceal anything essential before the Court, and

does not give false evidence before the Court, no occasion, for

issuance of any certificate, by the Public Prosecutor, under Section

308 (1), can be said to arise. The grounds, urged in the application of

the petitioner, preferred before the learned Special Judge did not,

therefore, make out a case for issuance of Certificate under Section

308 (1), by the Public Prosecutor. The learned Special Judge,

therefore, rightly chose not to “revoke the pardon” extended to the

respondent, on the basis of the said averments.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 8th June, 2020

 CRL.M.C. 1477/2020 & CRL.M.A. 6491/2020, CRL.M.A.

7117/2020

DIRECTORATE OF ENFORCEMENT Vs  RAJIV SAXENA

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

Citation: 2020 SCC OnLine Del 719

1. An interesting issue, involving the interplay between Section

306, and Section 308, of the Code of Criminal Procedure, 1973

(hereinafter referred to as “the Cr PC”, or “the 1973 Cr PC”), arises

for consideration in the present case.

Facts, and the impugned Order

2. The Central Bureau of Investigation (CBI) registered RC No.

217-2013A-0003, against the respondent, on 12th March, 2013,

alleging commission of offences, by him, punishable under Section

420, read with Section 120B of the Indian Penal Code, 1860 (IPC) and

Sections 7, 8, 9, 12 and 13(1)(d), read with Section 13(2) of the

Prevention of Corruption Act, 1988. Inasmuch as the allegations,

against the respondent (and others arraigned with him) indicated

commission of offences under the Prevention of Money Laundering

Act, 2002 (hereinafter referred to as “the PMLA”), ECIR No.

15/DLZO/2014 was also registered against, inter alia, the respondent,

on 3rd July, 2014, by the Directorate of Enforcement (the petitioner

herein).

3. Given the limited controversy before me, which is purely legal

in nature and turns on the interpretation of Sections 306 and 308 of the

Cr PC, it is not necessary to allude, to the allegations against the

respondent, in any detail. Suffice it to state that an application was

filed, by the respondent, under Section 306, Cr PC, for grant of

pardon. The said application was allowed, by the learned Special

Judge, CBI (hereinafter referred to as “the learned Special Judge”),

vide a detailed order, dated 25th March, 2019, the operative para 21,

whereof, reads thus:

“ In view of my aforesaid discussion, I thus allow the

application moved by accused/applicant Rajiv Saxena seeking

pardon and to make him an approver subject to his making

full and true disclosure of whole of the circumstances as are

within his knowledge relating to the offence and to every

other person concerned whether as an abettor or principal in

the commission of offences being tried over here.”

4. Sections 306 and 308 of the Cr PC read as under:

“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 (46 of 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 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

(46 of 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.”

“308. Trial of person not complying with the 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

CRL.M.C. 1477/2020 Page 5 of 50

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 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.”

CRL.M.C. 1477/2020 Page 6 of 50

5. On or around 18th October, 2019, the petitioner moved an

application, before the learned Special Judge, praying that the tender

of pardon, granted to the respondent on 25th March, 2019, by the

learned Special Judge, be revoked. Mr. R K. Handoo, learned counsel

appearing for the respondent, sought to submit that, as the application

had been preferred under Section 306, Cr PC, and not under Section

308 thereof, it was not maintainable1. Mr. Aman Lekhi, learned

Additional Solicitor General (ASG), submitted that the application

was actually relatable to Section 308 of the Cr PC, and not Section

306 thereof. Inasmuch as the position, in law, is well settled, that

reference, to a wrong provision of law, in the title of an application or

petition, is inconsequential, so long as the application, or petition, is

otherwise maintainable, I am not inclined to countenance the

objection, of Mr. Handoo. Mr. Handoo has also disputed the

maintainability of the aforesaid application, filed by the petitioner

before the learned Special Judge, on the ground that the law does not

recognise any concept of “revocation of pardon”. I shall deal with the

said submission later in the course of this judgment.

6. Annexed, to the said application, was a “Certificate for

revocation of pardon”, by the learned Special Counsel appearing for

the petitioner, which merits reproduction, in extenso, thus:

“I, Davinder Pal Singh, aged about 51 years, S/o Sh. Dewan

Singh, Special Counsel, Directorate of Enforcement, Office at

R-1 Nehru enclave, New Delhi-110019, do hereby certify as

under:

1 Pruthvirajsinh Nodhubha Jadeja v. Jayeshkumar Chhakkadas Shah, (2019) 9 SCC 533

CRL.M.C. 1477/2020 Page 7 of 50

1. That the Applications seeking revocation of

tender of pardon granted to Rajiv Saxena has been

moved by the ED. The same may be read as a part and

parcel of the instant certificate and are not repeated

herein for the sake of brevity.

2. That I have perused the statement(s) of Rajiv

Saxena and also perused the evidence on record.

3. That in my opinion, after due appreciation of

the evidence and the perusal of the records of the case,

it is clear beyond doubt that Rajiv Saxena has breached

the terms of the tender of pardon granted vide order

dated 25.03.2019.

4. That Rajiv Saxena has failed to disclose the full

and true set of facts/circumstances in his knowledge

and has wilfully concealed the true facts of the case.

He has further given false evidence to hide his

culpability in the case and also made selective

disclosures to shield other Accused. He is also in touch

with other Accused persons to derail the investigation.

5. That in light of the said facts and circumstances

of the case, the tender of pardon granted to Rajiv

Saxena be revoked by this Hon’ble Court and he may

be tried in accordance with law.”

7. As the afore-extracted certificate, of the learned Special

Counsel seeks to incorporate, therein, by reference, the grounds for

revocation of the tender of pardon extended to the respondent, it

becomes necessary to advert to the said grounds, as contained in the

body of the application. The application, of the petitioner, sought

revocation, of the pardon extended to him, on the ground that

(i) the respondent had failed to provide, during

investigation, various crucial documents, which were

CRL.M.C. 1477/2020 Page 8 of 50

believed to be in his possession, or had provided

incomplete documents, and

(ii) that the respondent had “wilfully concealed

essential information during the course of investigation”,

and had deleted data present in laptops, provided by the

respondent, before handing over, of the laptops, to the

petitioner.

In the circumstances, the application contended that the respondent

had exhibited bad faith, and had demurred from making a full and true

disclosure of the facts and circumstances of the case, which was one

of the essential conditions, subject to which pardon had been granted

to him, by the learned Special Judge. The pardon was, therefore, it

was contended, liable to be revoked, and it was prayed accordingly.

8. The impugned order, dated 5th March, 2020, of the learned

Special Judge, disposes of the aforesaid application, preferred by the

petitioner before him, seeking revocation of the pardon granted to the

respondent. The raison d’ etre, for the decision of the learned Special

Judge, is to be found in paras 23 to 25 of the impugned order, which,

consequently, merit reproduction in extenso, thus:

“23. From the perusal of Section 306 & 308 Cr PC and

aforesaid judgment it is clear that once the accused is granted

pardon by the Court and is made approver, the status of the

accused changes from accused to witness/approver.

However, if the approver, fails to comply with the conditions

of order granting him pardon, he makes him liable to be tried

as accused subject to the conditions as laid down in Section

CRL.M.C. 1477/2020 Page 9 of 50

308 Cr PC. In the judgment “State Vs Jagjit Singh”2 , it is

observed that revocation of pardon can only be as per the

procedure provided U/s 308 Cr PC which mandates that

approver be examined in the Court before revoking the

pardon. Thus it is clear that breach of the conditions of the

order granting pardon has to be looked into after the

approver is examined by the Session Court/Trial Court and

Ld. PP files Certificate that approver has committed breach

of the conditions on basis of which he was granted pardon.

Section 308 Cr PC also lays down that opportunity has to be

granted to the accused to defend himself that he has complied

with the conditions on which he was granted pardon.

Therefore, .

24. The contention of Ld. Counsel for ED that this Court

can revoke the pardon granted to any person, at any stage,

even before the approver is examined before Session

Court/Trial Court, is without any merit.

25. The application filed by ED is premature and is liable

to be dismissed. The Enforcement Directorate may move

appropriate application for revocation of pardon granted to

respondent Rajiv Saxena, if so needed, at appropriate stage.”

(Emphasis supplied)

9. The present petition, at the instance of the Directorate of

Enforcement (hereinafter referred to as “Enforcement Directorate”),

seeks quashing of the aforesaid order, dated 5th March, 2020, passed

by the learned Special Judge.

10. As the issue involved is purely one of law, I had, vide my order

dated 18th May, 2020, directed fixing of the present petition, for final

disposal, without requiring any counter-affidavit, rejoinder, to be

filed. Learned Counsel were requested to file brief written

2 State v. Jagjit Singh, 1989 Supp (2) SCC 770

CRL.M.C. 1477/2020 Page 10 of 50

submissions, in support of the respective stances. Written submissions

have, accordingly, been filed and Mr. Aman Lekhi, learned ASG, for

the petitioner, and Mr. R. K. Handoo, learned counsel for the

respondent, have been heard at considerable length.

Rival Submissions

11. Mr. Lekhi, the learned ASG, endeavoured to submit that the

learned Special Judge had completely misconstrued the scheme of

Sections 306 and 308 of the Cr PC. By taking me through Section

308, the learned ASG sought to point out that the statute did not

permit judicial review, by the learned Special Judge, of the certificate

of the prosecutor, submitted under Section 308 (1). In the learned

ASG’s submission, once the learned Public Prosecutor filed a

certificate, under Section 308 (1), the inexorable and inevitable

consequence would be that the approver would cease to be an

approver, and would become an accused, albeit in respect of the

offence for which he had been granted pardon. The learned ASG

submits that the approver-turned-accused could never be regarded as a

witness for the prosecution in the main trial. His trial would be

separated from the main trial, and the approver-turned-accused would

be tried only in respect of the offence, for which he had been granted

tender of pardon. Learned ASG sought to point out, further, that, by

seeking revocation of pardon, on the ground that the approver had

failed to abide by the conditions on which pardon had been granted,

the prosecution ran a grave risk, as the scheme of sub-sections (4) to

(5) of Section 308 permitted the accused, in the first instance, to

CRL.M.C. 1477/2020 Page 11 of 50

demonstrate that he had not, in fact, violated the said conditions. If he

succeeded in doing so, the accused was, necessarily, required to be

acquitted. Where the accused could not satisfactorily demonstrate that

he had complied with the conditions, subject to which pardon had

been granted, the learned Trial Court was required, first, to decide this

aspect of the matter. As such, submits the learned ASG, sufficient

protection, for the approver, was available in the various sub-sections

of Section 308 of the Cr PC.

12. Learned ASG submits, further, that the learned Special Judge

erred, and fundamentally, in holding that the statement of the approver

was required to be recorded, before deciding on the issue of

revocation of the pardon extended to him. No such requirement,

submits the learned ASG, is to be found in Section 308 of the Cr PC,

and it was not permissible, therefore, for the learned Special Judge to

engraft, by judicial fiat, a requirement which the statute did not

contain. The learned Special Judge, in treating the application, of the

petitioner, as “premature”, on the premise that, prior to seeking

revocation of pardon, the statement of the approver, to whom pardon

had been extended, was required to be recorded has, therefore, in the

submission of the learned ASG, gone wrong on facts as well as in law.

13. The view of the learned Special Judge, as expressed in the

impugned order, if accepted, would, learned ASG would seek to

submit, do complete violence to Section 306 of the Cr PC, and would

also reduce the certificate of the Public Prosecutor, to which Section

308 (1) accords pre-eminence, to a dead letter.

CRL.M.C. 1477/2020 Page 12 of 50

14. Learned ASG also sought to submit that the certificate, dated

18th October, 2019, of the learned Special Counsel (who, by virtue of

Section 46 of the PMLA, is deemed to be a “public prosecutor”) could

not be faulted for being unreasoned. I do not deem it necessary to

enter into this issue, as the said certificate – as reproduced

hereinabove – invokes, by reference, the contents of the application

preferred, by the petitioner, before the learned Special Judge for

revocation of the pardon granted to the respondent, and the reasons,

for seeking certain revocation, are set out, in exhaustive detail, in the

application. It cannot, therefore, in my view, be sought to be

contended that the certificate, dated 18th October, 2019, was not

reasoned.

15. Responding to the submissions of the learned ASG, Mr.

Handoo submitted, at the first instance, that the application, of the

petitioner, before the learned Special Judge, was itself not

maintainable, as the Cr PC does not contemplate “revocation” of

pardon, once tendered to an accused. Pardon, once granted, submits

Mr. Handoo, cannot be revoked, cancelled or withdrawn.

16. Mr. Handoo also disputes the submission, of the learned ASG,

that certificate, of the Public Prosecutor, tendered under Section

308 (1) of the Cr PC, is immune to judicial review, by the learned

Special Judge. No such immunity, he submits, flows from the statute,

and extending, to the application, of the Public Prosecutor, immunity

from judicial review, where the prayer, in the application, is to revoke

pardon, granted by a judicial order, would, in his submission, be ex

CRL.M.C. 1477/2020 Page 13 of 50

facie incongruous. Besides, submits Mr. Handoo, the certificate, of the

Public Prosecutor, under Section 308 (1), has necessarily to allege that

the approver has “wilfully concealed anything essential or given false

evidence”. Absent such averment, submits Mr. Handoo, the certificate

is no certificate at all. Non-cooperation with the investigative process,

particularly, is not one of the grounds on which revocation of the

pardon, extended to the respondent, could have been sought –

assuming such revocation could have been sought at all.

17. Drawing attention to sub-section (4) of Section 306, Mr.

Handoo submits that the recording of the statement of the approver,

consequent to grant of pardon under sub-section (1), is mandatory.

No such statement, he points out, was ever recorded, from his client,

after the grant of pardon, to him, on 25th March, 2019. The recording

of such statement, submits Mr. Handoo, has necessarily to precede the

issuance of certificate by the Public Prosecutor under Section 308 (1),

and the certificate, itself, had necessarily to be based on the statement

recorded under Section 306 (4). In other words, the “concealment” of

something “essential”, or the tendering of “false evidence”, according

to Mr. Handoo, has to be relatable to the statement of the approver,

recorded under Section 306 (4), and not independent thereof. The

stipulation, of the Public Prosecutor, being the person, designated to

issue certificate under Section 308 (1), Mr. Handoo submits,

underscores this position, as the Public prosecutor has nothing to do

with the investigative process, and his role stands limited to the

proceedings before the Court. If, therefore, the Public Prosecutor

certifies that the approver has wilfully concealed any essential fact, or

CRL.M.C. 1477/2020 Page 14 of 50

tendered false evidence, that, Mr. Handoo submits, would have to be

during the course of proceedings in the Court, and not during the

investigative process. The Public Prosecutor cannot, submits Mr.

Handoo, “peep into” the investigation, and relies, for the purpose, on

R. Sarala v. T. S. Velu3. The observation, of the learned Special

Judge, in para 29 of the impugned order, to the effect that recording of

the statement of the approver had necessarily to precede the

application for revocation of pardon is, therefore, Mr. Handoo

submits, unexceptionable, and, in fact, in accordance with the scheme

of Sections 306 and 308 of the Cr PC. This position, submits Mr.

Handoo, stands recognised in Jagjit Singh2, as well as in State of

Maharashtra v. Abu Salem Abdul Kayyum Ansari4 and Suresh

Chandra Bahri v. State of Bihar5.

18. Arguing in rejoinder, the learned ASG submits that the learned

Special Judge erred in picking out a solitary sentence out of the

decision in Jagjit Singh2, contrary to the fundamental principles of

precedent. Every case, he submits, is decided on its own facts, and the

facts, in Jagjit Singh2, are distinct, and different, from those obtaining

in the present case. Jagjit Singh2, the learned ASG points out,

involved a situation in which the approver, who had been granted

pardon, resiled from the conditions, whereunder the pardon was

granted. The prosecution sought to contend, before the Supreme

Court, that, by so resiling, the approver had, by his own act, converted

his status to that of an accused. The Supreme Court negatived the

3 (2000) 4 SCC 459

4 (2010) 10 SCC 179

5 1995 Supp (1) SCC 80

CRL.M.C. 1477/2020 Page 15 of 50

submission, holding that mere resiling, by the approver, did not make

him an accused, in the absence of the certificate, statutorily required to

be tendered, by the Public Prosecutor under Section 308 (1) of the

Cr PC. The observations in Jagjit Singh2, therefore, submits the

learned ASG, were made in the context of a situation in which there

was no certificate, by the Public Prosecutor, under Section 308 (1).

Per contra, he points out, in the present case, such a certificate exists.

The learned ASG submits that there is no prescribed format for the

certificate, and that, therefore, the attempt, of Mr. Handoo, to berate

the certificate as unreasoned, has no legs to stand on. The learned

ASG invited my attention to various paras of Jagjit Singh2, in order to

demonstrate that, in fact, the said decision supported the case of the

petitioner, and not that of the respondent. He also places especial

reliance on the judgment of the High Court of Madras in In re.

Arusami Goundan6, which, in his submission, stood approved in

Jagjit Singh2.

19. The learned ASG submitted, further, that Abu Salem Abdul

Kayyum Ansari4 clearly decided the issue in controversy in the favour

of the petitioner. He points out that, in the said case, the order of the

High Court, allowing the respondents to continue as a witness, was set

aside by the Supreme Court. Proceeding therefrom, the learned ASG

submits that, once the Public Prosecutor certified, under Section 308

(1) of the Cr PC, that the accused was giving false information, it

would be incongruous to allow him to continue as a witness for the

prosecution. He points out that, in para 21 of the report in Abu Salem

6 AIR 1959 Mad 274

CRL.M.C. 1477/2020 Page 16 of 50

Abdul Kayyum Ansari4, Jagjit Singh2 stood explained and clarified.

The learned ASG also invited my attention to para 17 of the report in

Abu Salem Abdul Kayyum Ansari4, and submits that the reference, in

the said para, to the calling of the respondent as a witness, was

because, in the facts of that case, the respondent had, in fact, been

called as a witness. The Supreme Court did not, in the said para,

according to the learned ASG, hold, as a principle of law, that the

wilful concealment of essential facts, or giving false evidence, by the

approver, had necessarily to be during the course of recording of his

statement under Section 306 (4), after he had been granted pardon

under Section 306 (1). In fact, submits the learned ASG, Section 306

was entirely irrelevant in the present case, which involved, essentially,

the interpretation of Section 308. He contrasts the two provisions by

pointing out that the primary role, in Section 306, was ascribed to the

Court, whereas the main actor, in Section 308, was the Public

Prosecutor. He submits that the learned Special Judge erred in

ignoring the use of the words “if any”, in Section 306 (4) which, in his

submission, are critical. The learned ASG also contrasted, in this

connection, Section 308 with Section 321 of the Cr PC. In fine, the

learned ASG submitted that it was not open to the learned Special

Judge to doubt the certificate of the learned Public Prosecutor,

submitted under Section 308 (1), which was sacrosanct.

CRL.M.C. 1477/2020 Page 17 of 50

Analysis

Statutory scheme of Sections 306 and 308, Cr PC

20. Sections 306, 307 and 308, Cr PC, form, in my opinion, a clear,

cohesive and coherent scheme, unmistakable in its progression.

Section 306 (1) empowers the Chief Judicial Magistrate, the

Metropolitan Magistrate, or the Magistrate of the First Class, to tender

pardon, to any person supposed to have been directly or indirectly

concerned in, or privy to, an offence to which the Section applies,

subject to the person 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 in the commission thereof. The

Magistrate, tendering pardon under Section 306 (1) is required, by

Section 306 (3), to record his reasons. Section 306 (4) mandates – as

is apparent from the use of the word “shall”, as well as from various

judicial authorities, which have pronounced on the point, to which of

which I would presently allude – the examination, as a witness, of the

person accepting pardon (who becomes, thereby, an “approver”), in

the Court of the Magistrate taking cognizance of the offence, as well

as in the subsequent trial, if any. Thereafter, the Magistrate taking

cognizance is required, under Section 306 (5), to commit the offence

for trial, to the jurisdictional Court, or to the Chief Judicial Magistrate,

as the case may be. Section 307 empowers the Court, to which the

offence is committed under Section 306 (5) to, during the course of

trial, tender pardon to any person, supposed to have been directly or

indirectly concerned in, or privy to, the offence being tried, so as to

CRL.M.C. 1477/2020 Page 18 of 50

obtain the evidence of such person. Admittedly, Section 307 does not

impact the issue before me. Section 308 deals with non-compliance

with the conditions, subject to which pardon is granted under Section

306 (1). Section 308 (1) empowers the Public Prosecutor to certify

that, in his opinion, an approver – i.e., an accused to whom pardon has

been extended under Section 306 or Section 307 – has wilfully

concealed something essential, or given false evidence and has,

thereby, failed to comply with the condition, subject to which pardon

was granted to him. On such certificate being issued by the Public

Prosecutor, the approver concerned becomes liable to be tried for the

offence in respect of which he had, earlier, been granted pardon, as

well as for any other offence, of which he appears to have been guilty,

and for giving false evidence (with leave of the High Court), albeit

separately from the other accused. At such trial, the approver-turnedaccused

shall be entitled to plead compliance, on his part, with the

conditions of pardon. Any such plea, if advanced by the approverturned-

accused, would shift the onus, to the prosecution, to prove

infraction, by the approver-turned-accused, of the conditions of

pardon. In such a case, the Court trying the approver-turned-accused

shall, before passing judgment, determine, in the first instance,

whether the approver-turned-accused complied with the conditions of

pardon. In case he did so, the approver-turned-accused is entitled to

acquittal.

21. As the scheme, aforesaid, reveals itself, therefore, examination

of the approver, under Section 306 (4) is, ex-facie, mandatory.

Thereafter, the proceeding may follow one of two paths. Absent any

CRL.M.C. 1477/2020 Page 19 of 50

infraction, by the approver, of the conditions of pardon, the trial of the

main offence continues, and the approver is liable to be arraigned as a

prosecution witness therein. If, however, the approver breaches the

conditions of pardon, by concealing material facts or tendering false

evidence, the Public Prosecutor is empowered to so certify, in which

case the approver becomes an accused, in respect of the offence for

which pardon had been tendered to him, and becomes liable to be tried

for the said offence. Such trial, however, has to proceed separately,

from the trial of the main offence.

Analysis

22. That the proceeding has to traverse the above, inexorable, path,

stands authoritatively held, by the Supreme Court, over half a century

ago, in Bipin Behari Sarkar v. State of West Bengal7, albeit in the

context of Section 337 to 339 of the Code of Criminal Procedure,

1898 (hereinafter referred to as “the 1898 Cr PC”) which, to all intents

and purposes, are in pari materia with Sections 306 and 308 of the

1973 Cr PC. For ready reference, Sections 337 to 339 of the 1898 Cr

PC, may be reproduced thus:

“337. Tender of pardon to accomplice. –

(1) In the case of any offence triable

exclusively by the High Court or Court of

Session, or any offence punishable with

imprisonment which may extend to seven years,

or any offence under any of the following

sections of the Indian Penal Code, namely,

Sections 161, 165, 165A, 216A, 369, 401, 435

and 477A, the District Magistrate, a Presidency

7 AIR 1959 SC 13

CRL.M.C. 1477/2020 Page 20 of 50

Magistrate, a Sub-divisional Magistrate or any

Magistrate of the first class may, at any stage of

the investigation or enquiry into, or the trial of

the offence, with a view to obtaining the

evidence of any person supposed to have been

directly or indirectly concerned in or privy to

the offence, 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;

Provided that, where the offence is under

inquiry or trial, no Magistrate of the first class

other than the District Magistrate shall exercise

the power hereby conferred unless he is the

Magistrate making the inquiry or holding the

trial, and, where the offence is under

investigation, no such Magistrate shall exercise

the said power unless he is a Magistrate having

jurisdiction in a place where the offence might

be inquired into or tried and the sanction of the

District Magistrate has been obtained to the

exercise thereof.

(1A) Every Magistrate who tenders a pardon

under Sub-section (1) shall record his reasons

for so doing, and shall, on application made by

the accused, furnish him with a copy of such

record :

Provided that the accused shall pay for the same

unless the Magistrate for some special reason

thinks fit to furnish it free of cost.

(2) Every person accepting a tender under

this section shall be examined as a witness in

the Court of the Magistrate taking cognizance of

the offence and in the subsequent trial, if any.

CRL.M.C. 1477/2020 Page 21 of 50

(2A) In every case where a person has

accepted a tender or pardon and has been

examined under sub-section (2), the Magistrate

before whom the proceedings are pending shall,

if he is satisfied that there are reasonable

grounds for believing that the accused is guilty

of an offence, commit him for trial to the Court

of Session or High Court, as the case may be.

(2B) In every case where the offence is

punishable under Section. 161 or Section 165 or

S. 165A of the Indian Penal Code, 1860 or subsection

(2) of Section. 5 of the Prevention of

Corruption Act, 1947, and where a person has

accepted tender of pardon and has been

examined under sub-section (2) then,

notwithstanding anything contained in subsection

(2A), a Magistrate shall, without making

any further inquiry, send the case for trial to the

Court of the Special Judge appointed under the

Criminal Law Amendment Act, 1952 (26 of

1952).

(3) Such person, unless he is already on bail,

shall be detained in custody until the

termination of the trial

338. Power to direct tender of pardon.

At any time after commitment, but before

judgment is passed, the Court to which the

commitment is made may, with the view of

obtaining in 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 to such person.

CRL.M.C. 1477/2020 Page 22 of 50

339. Commitment of person to whom pardon has

been tendered:

(1) Where a pardon has been tendered under

section 337 or section 338 and the Public

prosecutor certifies that in his opinion any

person who has accepted such tender 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:

Provided that such person shall not be tried

jointly with any of the other accused, and that

he shall be entitled to plead at such trial that he

has complied with the conditions upon which

such tender was made; in which case it shall be

for the prosecution to prove that such conditions

have not been complied with.

(2) The statement made by a person who has

accepted a tender of pardon may be given in

evidence against him at such trial.

(3) No prosecution for the offence of giving

false evidence in respect of such statement shall

be entertained without the sanction of the High

Court.”

23. A comparative study of Sections 337 to 339 of the 1898 Cr PC,

vis-à-vis Sections 306 to 308 of the 1973 Cr PC, reveal that they are,

in all relevant respects, in pari materia. That the law, as enunciated in

the context of Sections 337 to 339 of the 1898 Cr PC would also

apply, mutatis mutandis, to Sections 306 to 308 of the 1973 Cr PC,

CRL.M.C. 1477/2020 Page 23 of 50

also stands recognized in Jagjit Singh2 and Abu Salem Abdul

Kayyum Ansari4.

24. Bipin Behari Sarkar7, subjecting Sections 337 to 339 of the

1898 Cr PC to a close and searching scrutiny, holds thus (in para 7 of

the report):

“Section 339(1) of the Code provides that “where a pardon

has been tendered under Section 337 or Section 338, and the

Public Prosecutor certifies that in his opinion any person who

has accepted such tender 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”. The

proviso to this sub-section prohibits the trial of such person

jointly with any of the other accused and that such person

shall be entitled to plead at such trial that he had complied

with the condition upon which such tender was made. The

provisions of this section clearly pre-suppose that the pardon

which had been tendered to a person had been accepted by

him and that thereafter that person had wilfully concealed

anything essential or had given false evidence and therefore

had not complied with the condition on which the tender was

made to him. Section 337 of the Code, under which a pardon

is tendered, shows that such tender is made on the condition

that the person to whom it is tendered makes 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 a principal or an abettor to the

commission thereof. Sub-section (2) of this section requires

that every person who has accepted a tender shall be

examined as a witness in the Court of the Magistrate taking

cognizance of the offence and in the subsequent trial, if any. It

is clear, therefore, that a mere tender of pardon does not

attract the provisions of Section 339. There must be an

acceptance of it and the person who has accepted the pardon

must be examined as a witness. It is only thereafter that the

provisions of Section 339 come into play and the person who

accepted the pardon may be tried for the offence in respect of

CRL.M.C. 1477/2020 Page 24 of 50

which the pardon was tendered, if the Public Prosecutor

certifies that in his opinion he has, either wilfully concealed

anything essential or had given false evidence and had not

complied with the condition on which the tender was made.”

(Italics and underscoring supplied)

The italicised and underscored words, from the afore-extracted

passage from Bipin Behari Sarkar7 clearly indicate that, in the

scheme of Sections 337 to 339 of the 1898 Cr PC, it was only after the

accused-turned-approver (consequent to his having been granted

tender of pardon) was examined as a witness under Section 337 (2),

that the Public Prosecutor could certify, under Section 339 (1), that he

had concealed material facts, or given false evidence. Extrapolating

the ratio to the 1973 Cr PC, it would appear that it is only after the

accused-turned-approver is examined as a witness, under Section 306

(4), that the Public Prosecutor could certify, under Section 308 (1),

that he had concealed material facts, or given false evidence. Per

corollary, it would be premature to seek for revocation, of the pardon

extended to the approver, before his statement was recorded under

Section 306 (4), Cr PC – which is what the impugned order holds.

25. Various High Courts, in the context of the 1898 Cr PC, in fact,

adopted the same view. As far back as in 1943, a learned Division

Bench of the High Court of Sindh ruled, in Emperor v. Pir

Imamshah8, thus:

“In our view, then, the tender of pardon having once been

made by the District Magistrate and accepted by the accused,

the tender of pardon could not be withdrawn as the District

8 AIR 1944 Sindh 184

CRL.M.C. 1477/2020 Page 25 of 50

Magistrate withdrew it. The accused should be examined as a

witness in accordance with the provisions of Section 337 (2),

Cr PC, and it will be for the Public Prosecutor thereafter to

consider whether the accused should or should not be

prosecuted in accordance with the provisions of Section 339,

Cr PC.”

(Emphasis supplied)

26. In re. Arusami Goundan6, on which both learned Counsel

before me rely, specifically holds, in para 17, thus:

“Let us examine the reason of the matter. Occasionally when

grave offences are committed the law finds it necessary to

enlist the assistance of some of the offenders in order that the

rest may be brought to justice. This happens when one of

several persons who have committed a crime makes a

confession which is believed to be true and which It is

considered would help to secure a conviction of the rest.

The Procedure Code now insists that accomplices who have

been tendered a pardon must be examined both in the

committing court and in the court of Session. This provision

is inserted in the interests of justice and is not intended for the

benefit of the approver. Its purpose is to ensure that all the

evidence obtained from the accomplice is placed before the

court so that justice may be done as between the State and the

persons placed in their trial. It is not an ordeal through which

an approver has to pass before he can win to safety.

So far as the approver is concerned, he is given a pardon "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." The

condition of the pardon is that he must make a full and true

disclosure, and, if, he wilfully conceals anything essential or

gives false evidence, he would have failed to comply with the

conditions on which the pardon was granted to him.

The obligation to make a full and true disclosure would arise

whenever the approver is lawfully called upon to give

evidence touching the matter; it may be in the committing

CRL.M.C. 1477/2020 Page 26 of 50

court, or, it may be in the sessions court. But, the obligation

to make a full and true disclosure rests on the approver at

every stage at which he can be lawfully required to give

evidence. If at any stage he either wilfully conceals material

particulars or gives false evidence he would have failed to

comply with the conditions' on which the pardon was

tendered to him and thereby incurred its forfeiture.

Neither as a matter of reason or logic, nor as a matter of

statutory interpretation can it be said that Section 339 (1) is

dependent on or connected with Section 337(2) in the sense

that the approver must be examined both in the committing

court and the Sessions Court before it can be held that he has

forfeited his pardon. It is sufficient if he fails to conform to the

conditions on which the pardon has Been granted to him at

either stage. As explained in the earliest of the cases we have

referred to where a pardon has been tendered and accepted,

the utmost good faith must be kept on both sides.”

(Italics and underscoring supplied)

A reading of the above passages, from Arusami Goundan6 seems to

reveal some degree of ambivalence, on the issue of whether it is

necessary to examine the approver twice, first in the committing Court

and, thereafter, in the Sessions Court. On the aspect that the

obligation, to make full and true disclosure, could be cast on the

approver only when he is lawfully called to tender evidence in court,

be it before the committing court, or the Sessions Court, however, the

decision appears to be clear and categorical. In fact, the Court clarifies

that the very purpose of requiring examination, of the approver, to

whom pardon has been tendered, is to examine whether he is

conforming to the conditions of pardon, or not.

CRL.M.C. 1477/2020 Page 27 of 50

27. The same view stands reflected, in the context of the 1973

Cr PC, in the following passages, from the judgment of the High

Court of Kerala in In re: Chief Judicial Magistrate9 (in which,

significantly, the Court was concerned with the propriety of the

Magistrate examining the accused at the time of granting tender of

pardon):

“8. Such examination of questioning is not the one

contemplated in Section 306 (4). Examination under Section

306(4) is mandatory. What the sub-section says is that every

person accepting a tender of pardon shall be examined as a

witness in the Court of the Magistrate taking cognizance and

in the subsequent trial. The object of such examination is to

ascertain whether he has resiled from his former position and

his broken the conditions of his pardon. It has to be

remembered that the prosecution is not bound to examine an

approver in the subsequent trial if he has resiled from his

position and broken the conditions while examined before the

Magistrate under Section 306(4). Examination under Section

306(4) is therefore compulsory and the examination or

questioning at the time of tendering pardon is not a substitute

for it. Where a person has been made an approver the

principal task before the court is to see whether his evidence

is corroborated by that of other witnesses and consequently,

at the trial the approver must be examined first or at the

earliest even though non-compliance cannot be relied on if no

prejudice resulted. Such examination of the approver at the

trial will depend upon whether he resiled from his position or

not in the committing court. That is one of the reasons why

his examination under Section 306(4) in the Court of the

Magistrate; taking cognizance is made compulsory.

*****

12. Examination of the approver under Section 306(4)

before the Magistrate taking cognizance and his subsequent

examination at the trial are entirely for different purposes.

His examination before the Magistrate is not to treat it as

evidence to consider the guilt of innocence of the accused, but

9 1988 Cri LJ 812 : 1987 (2) Crimes 647 (Ker.)

CRL.M.C. 1477/2020 Page 28 of 50

only for the purpose I have mentioned earlier. Such

examination will be even before process is issued to the

accused. At that stage no enquiry even is involved and further

the accused will be nowhere in the picture. There is no

question of the accused being permitted to cross-examine the

approver at that stage. Accused has no right to participate in

that examination. But his examination in the subsequent trial

is for the evidence in the case. Necessarily and naturally the

accused has a right to cross-examine him at that stage because

without cross-examining and challenging his veracity the

evidence cannot be used against the accused.”

(Italics and underscoring supplied)

28. The authorities, cited hereinabove, all indicate that examination,

of the approver, under Section 306 (4) of the 1973 Cr PC [or Section

337 (2) of the 1898 Cr PC], is mandatory, has to precede issuance of

certificate, by the Public Prosecutor under Section 308 (1) of the 1973

Cr PC [or Section 339 (1) of the 1898 Cr PC], and is intended to

ascertain whether the approver has complied with the conditions of

pardon, or has resorted to concealment of material fact, or tendering

of false evidence.

29. I proceed, now, to advert to the three decisions, of the Supreme

Court, on which, principally, arguments, before me, revolved, namely

Jagjit Singh2, Abu Salem Abdul Kayyum Ansari4 and Suresh

Chandra Bahri5. Reliance, on these decisions was, incidentally,

placed by both the learned ASG, appearing for the petitioner, as well

as Mr. Handoo, learned Counsel for the respondent.

30. The respondent Jagjit Singh, in Jagjit Singh2, was granted

pardon, under Section 306 of the Cr PC and, consequently, turned

CRL.M.C. 1477/2020 Page 29 of 50

approver. He was, thereafter, examined as a prosecution witness in the

committal case proceeding, on 24th December, 1985, when he resiled

from his earlier statement. In the Court of Sessions, Jagjit Singh

sought to contend that he could not be examined as a witness, as he

had not accepted the pardon, and did not support the version of the

prosecution. This submission was rejected by the learned Trial Court,

and the Criminal Revision Petition, preferred thereagainst, was also

dismissed by this Court. Thereafter, one of the accused, who was a

proclaimed offender, was arrested and the supplementary challan was

filed, against him, in the court of the Metropolitan Magistrate. In the

said proceedings, Jagjit Singh was sought to be examined, by the

prosecution, as an approver. He, however, opposed his being

summoned as an approver, on the ground that, as he had resiled from

his pardon, he could not be examined as a witness in the case. The

learned Chief Metropolitan Magistrate dismissed the application, but

the Criminal Revision Petition, preferred by Jagjit Singh, thereagainst,

was allowed, by a learned Single Judge of this Court, who directed the

State not to examine Jagjit Singh as an approver in the supplementary

FIR, lodged in the proceedings. Aggrieved, thereby, the State

appealed to the Supreme Court.

31. Paras 7 and 8 of the decision, which are of some relevance, may

(to the extent they are relevant) be reproduced thus:

“7. It has been urged that the statement recorded under

Section 164 of the Code of Criminal Procedure was not

made by the respondent, Jagjit Singh voluntarily but it was

obtained under coercion by the police. It has also been

contended that he resiled from his statements in the court

of the Committing Magistrate and he has not accepted the

CRL.M.C. 1477/2020 Page 30 of 50

pardon granted to him by the Magistrate. He should be

arrayed as an accused in the case FIR No. 238 of 1985 and

should be tried as an accused along with other accused in

the said case. This contention is not tenable inasmuch as

the pardon granted to the respondent, Jagjit Singh was

accepted by him and other approver, Gurvinder Singh who

were examined as PW 1 and PW 2 in the court of the

Committing Magistrate. These approvers, of course,

resiled from their statement in the court of the Committing

Magistrate. It has therefore, been submitted that the

prosecution cannot examine him as a witness in the said

case as he has cast away the pardon granted to him. The

submission, in our considered opinion, is not tenable

inasmuch as sub-section (4) of Section 306 of Code of

Criminal Procedure clearly enjoins that a person

accepting a tender of pardon has to be examined as a

witness in the court of the Magistrate taking cognizance of

the offence and in the subsequent trial, if any. It is

therefore, a mandate of the provisions of the said Act to

the prosecution to examine the approver to whom pardon

has been granted as a witness both in the Committing

Court as well as in the trial court. It does not matter

whether the approver has resiled from his statement and

has not made a full and true disclosure of whole of the

circumstances within his knowledge relating to the offence

so long as the Public Prosecutor does not certify that in

his opinion the approver has either wilfully concealed

anything essential or has given false evidence contrary to

the condition on which the tender of pardon was made.

8. It has been next contended that the grant of pardon is

in the nature of a contract between the State granting the

pardon on the one hand and the person accepting the

pardon on the other hand. As the State has the power to

revoke the pardon at any time the approver has also got

the reciprocal right to cast away the pardon granted to

him. This submission is also not tenable. The power to

grant pardon carries with it the right to impose a condition

limiting the operation of such a pardon. Hence a

pardoning power can attach any condition, precedent or

subsequent so long as it is not illegal, immoral or

impossible of performance. Section 306 clearly enjoins

that the approver who was granted pardon had to comply

with the condition of making a full and true disclosure of

CRL.M.C. 1477/2020 Page 31 of 50

the whole of the circumstances within his knowledge

relative to the offence and to every other concerned

whether as principal or abettor, in the commission thereof.

It is because of this mandate, the State cannot withdraw

the pardon from the approver nor the approver can cast

away the pardon granted to him till he is examined as a

witness by the prosecution both in the Committing Court

as well as in the trial court. The approver may have

resiled from the statement made before the Magistrate in

the Committing Court and may not have complied with

the condition on which pardon was granted to him, still the

prosecution has to examine him as a witness in the trial

court. It is only when the Public Prosecutor certifies that

the approver has not complied with the conditions on

which the tender was made by wilfully concealing

anything essential or by giving false evidence, he may be

tried under Section 308 of the Code of Criminal

Procedure not only for the offence in respect of which

pardon was granted but also in respect of other offences.

In these circumstances, the question of casting away the

pardon granted to an approver and his claim not to be

examined by the prosecution as a witness before the trial

court is without any substance.”

32. The learned ASG sought to distinguish the decision in Jagjit

Singh2, and also criticised the learned Special Judge for having, in his

submission, picked a sentence out of the said judgment, oblivious of

the context in which it was rendered. The learned ASJ has

submitted – and, it must be accepted, unexceptionably – that a

judgment has to be read as a whole, and in the context of the fact

situation obtaining before the Court, and cannot be relied upon, for

precedential worth, by extracting, therefrom, a sentence here nor

there. The learned ASG pointed out that the controversy before the

Supreme Court, in Jagjit Singh2 was whether, merely because Jagjit

Singh had resiled from the statement, rendered by him, consequent to

grant of pardon, he stood converted, ipso facto, into an accused, from

CRL.M.C. 1477/2020 Page 32 of 50

an approver. Moreover, points out learned ASG, the Public

Prosecutor, in Jagjit Singh2, had not issued the requisite certificate

under Section 308 (1) of the Cr PC. These two circumstances, in his

submission, clearly distinguish the case, at hand, from Jagjit Singh2.

In relying, blindly, on Jagjit Singh2, without taking stock of these two

vitally distinguishing circumstances, the learned Special Judge has,

contends the learned ASG, materially erred.

33. To the extent of his contention that, in respect of the above two

circumstances, the facts in Jagjit Singh2 are different from those in

the present case, I find myself in agreement with the learned ASG.

However, these two distinguishing circumstances, by themselves,

cannot, in my considered opinion, entirely erode the precedential

worth of the pronouncement in Jagjit Singh2, insofar as its

applicability, to the case before me, is concerned. It is true that, at

times, a single distinguishing fact, may affect, vitally, the applicability

of an earlier pronouncement, as a precedent in a later case10. Equally

true, however, is it that every distinguishing factual circumstance

cannot result in evisceration of the precedential value of an earlier

judgment11. It is also trite, and well settled, that hierarchically lower

judicial authorities ought not to seek to escape the precedential value

of a pronouncement of the Supreme Court, constitutionally sanctified

by Article 141, by relying on factual distinctions, which do not affect

the ratio decidendi of the judgment12. It is a truism that no two cases

10 Gian Chand v. State of Haryana, (2013) 14 SCC 420; Megh Singh v. State of Punjab, (2003) 8 SCC

666; Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd., AIR 2003 SC 511

11 Fida Hussain v. Moradabad Development Authority, (2011) 12 SCC 615; Ballabhadas Mathurdas

Lakhani v. Municipal Committee, Malkapur, (1970) 2 SCC 267

12 Fuzlunbi v. K. Khader Vali and Anr., (1980) 4 SCC 125

CRL.M.C. 1477/2020 Page 33 of 50

are absolutely identical on facts, and if identity on facts is to be a

prerequisite for a pronouncement of the Supreme Court to have

precedential value, Article 141 may well stand reduced to a dead

letter. Tweedledum and Tweedledee existed only in the fertile

imagination of Lewis Carroll. Article 141 makes the declaration of the

law, by the Supreme Court, binding on all authorities in the territory

of India. It would be an affront to Article 141, to understand the

precedential worth of the declaration of the law, by the Supreme

Court, by limiting the declaration by the factual matrix in which it was

made. What has, in every case, to be examined, is, rather, whether

the factual difference(s), between the earlier pronouncement, and the

case at hand is, or are, such as to affect the precedential applicability,

of the former, on the latter.

34. In paras 7 and 8 of Jagjit Singh2, while examining whether the

Court could withdraw the pardon granted to the approver, or the

approver could cast away the pardon granted him, and answering the

issue in the negative, the Supreme Court held that, even if the

approver were to resile from his statement, he, nevertheless, has to be

examined as a witness, and it is only when the Public Prosecutor

certifies that the approver has not complied with the conditions of

tender of pardon, by concealing something essential or giving false

evidence, that the approver could be tried under Section 308 of the

Cr PC. Though the judgment, it is true, does not say, in so many

words, that the certificate of the Public Prosecutor, under Section 308

(1), has to be based on the evidence, recorded by the Committing

Court, of the approver, a contextual reading of the observations of the

CRL.M.C. 1477/2020 Page 34 of 50

Supreme Court indicate that the examination of the approver, as a

witness, by the prosecution, as well as the certification, by the Public

prosecutor, regarding non-compliance, by the approver, of the

conditions of pardon, are both essential precursors, to trial of the

approver, under Section 308, in respect of the offence for which

pardon was granted as well as in respect of other offences in which he

may be involved.

35. In Abu Salem Abdul Kayyum Ansari4, Respondent No. 3,

before the Supreme Court, was granted pardon, by the Sessions Court,

under Section 307, Cr PC, and made an approver. He, thereafter, was

examined as a witness in the trial, by the prosecution. During the

course of such examination, the Public prosecutor realised that

Respondent No. 3 was being economical with the truth. To a specific

query as to whether he desired to inform the court regarding the

conspiracy forming subject matter of the trial, the answer of

Respondent No. 3 was in the negative. The Public Prosecutor,

forthwith, issued a certificate, under Section 308, Cr PC, to the effect

that Respondent No. 3 had not complied with the condition, subject

which pardon had been extended to him, and prayed, therefore, that he

be tried separately.

36. Respondent No. 1, before the Supreme Court, desired to crossexamine

Respondent No. 3. The learned Designated Court, trying the

case, allowed the request. Aggrieved, the State of Maharashtra

appealed to the Supreme Court.

CRL.M.C. 1477/2020 Page 35 of 50

37. On facts, there is a significant distinction, between Abu Salem

Abdul Kayyum Ansari4 and the present case, as the tendering of

pardon, in Abu Salem Abdul Kayyum Ansari4 was by the Sessions

Court, during trial, under Section 307, and not by the committal Court,

under Section 306, Cr PC. No occasion, therefore, arose for subsection

(4) of Section 306, to apply. The decision, nevertheless,

assumes significance, as a precedent in the present case, on account of

the following findings, returned by the Supreme Court in paras 17 and

21 of the report. Para 17 contains the following clear and unequivocal

exposition of the law, in relation to Sections 306 and 307, Cr PC:

“An accomplice who has been granted pardon under Section

306 or 307 Cr PC gets protection from prosecution. When he

is called as a witness for the prosecution, he must comply

with the condition of making a full and true disclosure of the

whole of the circumstances within his knowledge concerning

the offence and to every other person concerned, whether as

principal or abettor, in the commission thereof and if he

suppresses anything material and essential within his

knowledge concerning the commission of crime or fails or

refuses to comply with the condition on which the tender was

made and the Public Prosecutor gives his certificate under

Section 308 Cr PC to that effect, the protection given to him is

lifted.”

(Emphasis supplied)

This passage, therefore, echoes the view, in Bipin Behari Sarkar7,

that concealment of anything material, or giving false evidence, by an

approver, would arise “when he is called as a witness for the

prosecution”. The approver, when so called, is under a duty to make a

full and true disclosure of the circumstances within his knowledge,

concerning the offence, and with respect to every other person so

concerned. If he suppresses anything essential, within his knowledge,

CRL.M.C. 1477/2020 Page 36 of 50

concerning the offence, or, by giving false evidence, fails to comply

with the condition, subject to which pardon was tendered by him, the

Public Prosecutor so certifies, under Section 308 (1), whereupon the

approver becomes an accused, in respect of the offence for which

pardon had been tendered to him, and any other offence, of which he

appears to be guilty in connection with the same matter. He also

becomes liable to be tried for the offence of giving false evidence,

albeit with the sanction of the High Court.

38. The judgment in Abu Salem Abdul Kayyum Ansari4 goes on to

reproduce para 7 of the report in Jagjit Singh2, and return the

following findings, in respect thereof (in para-21):

“The above statement of law in Jagjit Singh [1989 Supp (2)

SCC 770 : 1990 SCC (Cri) 133] cannot be understood as

laying down that an accomplice who has been tendered

pardon and called as a witness for the prosecution must be

continued to be examined as a prosecution witness although

he has failed to comply with the condition on which the

tender of pardon was made and a Public Prosecutor certifies

that he has not complied with the condition on which the

tender was made. As a matter of fact, in Jagjit Singh case

[1989 Supp (2) SCC 770 : 1990 SCC (Cri) 133] no certificate

was given by the Public Prosecutor. The legal position that

flows from the provisions contained in Sections 306, 307 and

308 Cr PC is that once an accomplice is granted pardon, he

stands discharged as an accused and becomes witness for the

prosecution. As a necessary corollary, once the pardon is

withdrawn or forfeited on the certificate given by the Public

Prosecutor that such person has failed to comply with the

condition on which the tender was made, he is reverted to the

position of an accused and liable to be tried separately and the

evidence given by him, if any, has to be ignored in toto and

does not remain legal evidence for consideration in the trial

against the co-accused, albeit such evidence may be used

CRL.M.C. 1477/2020 Page 37 of 50

against him in the separate trial where he gets an opportunity

to show that he complied with the condition of pardon.”

(Emphasis supplied)

Though the above passage concerns itself more with the consequence

of issuance, by the Public Prosecutor, of the certificate under Section

308 (1) of the Cr PC, it reiterates, nevertheless, the position that “an

accomplice who has been tendered pardon and called as a witness for

the prosecution” cannot be continued to be examined as a prosecution

witness, if the Public Prosecutor certifies that the accomplice has not

complied with the condition on which tender of pardon was made.

Here, again, calling of the accomplice-turned-approver, as a witness

for the prosecution, between the tendering of pardon to the accomplice

(thereby making him an approver), and the issuance of Certificate, by

the Public Prosecutor, is regarded as inevitable.

39. The facts, in Suresh Chandra Bahri5, are extremely involved,

and it is not necessary to be make reference thereto, in order to

extract, from the said judgment, the applicable ratio decidendi, insofar

as the present case is concerned. Suffice it to state that, in the said

case, after tender of pardon to the approver Ram Sagar Vishwakarma,

the learned Magistrate, who took cognizance and committed the

offence for trial to the Court of Sessions, did not record his statement

under Section 306 (4) of the Cr PC. The learned Sessions Court

remanded the matter, to the learned Magistrate, to record the statement

of the approver, under the said provision. The Supreme Court was,

inter alia, seized with the issue of whether such a procedure was

permissible, and answered it, ultimately, in the affirmative (in paras

CRL.M.C. 1477/2020 Page 38 of 50

31 to 33 of the report). In the process of doing so, the Supreme Court,

in para 30 of the report, returned the following findings which, in my

opinion, practically clinch the controversy in issue before me:

“A bare reading of clause (a) of sub-section (4) of Section

306 of the Code will go to show that every person accepting

the tender of pardon made under sub-section (1) has to be

examined as a witness in the Court of the Magistrate taking

cognizance of the offence and in the subsequent trial, if any.

Sub-section (5) further provides that the Magistrate taking

cognizance of the offence shall, without making any further

enquiry in the case commit it for trial to any one of the courts

mentioned in clauses (i) or (ii) of clause (a) of sub-section (5),

as the case may be. Section 209 of the Code deals with the

commitment of cases to the Court of Session when offence is

tried exclusively by that court. The examination of accomplice

or an approver after accepting the tender of pardon as a

witness in the Court of the Magistrate taking cognizance of

the offence is thus a mandatory provision and cannot be

dispensed with and if this mandatory provision is not

complied with it vitiates the trial. As envisaged in sub-section

(1) of Section 306, the tender of pardon is made on the

condition that an approver shall make a full and true

disclosure of the whole of the circumstances within his

knowledge relating to the offence. Consequently, the failure to

examine the approver as a witness before the committing

Magistrate would not only amount to breach of the

mandatory provisions contained in clause (a) of sub-section

(4) of Section 306 but it would also be inconsistent with and

in violation of the duty to make a full and frank disclosure of

the case at all stages. The breach of the provisions contained

in clause (a) of sub-section (4) of Section 306 is of a

mandatory nature and not merely directory and, therefore,

non-compliance of the same would render committal order

illegal. The object and purpose in enacting this mandatory

provision is obviously intended to provide a safeguard to the

accused inasmuch as the approver has to make a statement

disclosing his evidence at the preliminary stage before the

committal order is made and the accused not only becomes

aware of the evidence against him but he is also afforded an

opportunity to meet with the evidence of an approver before

the committing court itself at the very threshold so that he

may take steps to show that the approver's evidence at the

CRL.M.C. 1477/2020 Page 39 of 50

trial was untrustworthy in case there are any contradictions or

improvements made by him during his evidence at the trial. It

is for this reason that the examination of the approver at two

stages has been provided for and if the said mandatory

provision is not complied with, the accused would be

deprived of the said benefit. This may cause serious prejudice

to him resulting in failure of justice as he will lose the

opportunity of showing the approver's evidence as unreliable.

Further clause (b) of sub-section (4) of Section 306 of the

Code will also go to show that it mandates that a person who

has accepted a tender of pardon shall, unless he is already on

bail be detained in custody until the termination of the trial.

We have, therefore, also to see whether in the instant case

these two mandatory provisions were complied with or not

and if the same were not complied with, what is the effect of

such a non-compliance on the trial?”

(Italics and underscoring supplied)

40. Para 30 of the report in Suresh Chandra Bahri5, therefore,

holds that the examination of the approver, as witness, under Section

306 (4), Cr PC, serves two objectives, the first being to test whether

the approver is abiding by his undertaking – subject to which pardon

was tendered to him – to make a full and true disclosure of all facts

within his knowledge, and provided true evidence in respect thereof,

and the second, so as to enable the accused to point out any

inconsistencies, between the said statement and the subsequent

evidence, of the approver, during trial, if any. With the second

objective, we are not particularly concerned, in the present case; the

first, however, is pivotal to the issue in controversy, as the Supreme

Court has clarified, yet again, that examination of the approver, as a

witness under Section 306 (4) is intended, inter alia, to ascertain

whether the approver is abiding by the conditions of his pardon, or is

an untrustworthy witness. In the latter eventuality, no doubt, the

CRL.M.C. 1477/2020 Page 40 of 50

Public Prosecutor would be in a position to so certify, under Section

308 (1), in which event the approver would revert to his former status

as accused, albeit in respect of the offence for which he had been

tendered pardon, as well as any other offence in which he may be

involved. The approver-turned-accused would, then, be liable to be

tried, separately from other accused in the main case, for the said

offences – as well as for the offence of giving false evidence, with the

leave of the High Court.

41. The position that results, in law, therefore, appears to be

unmistakable. Tendering of pardon, to an accomplice, under Section

306 (1), Cr PC, and his conversion, thereby, into an approver, has,

inexorably, to be succeeded by his examination, as a witness, under

Section 306 (4). It is during the course of such statement, that the

Public Prosecutor would be able to discern whether the approver is, or

is not, abiding by the conditions, subject to which pardon was

tendered in, of making a full and true disclosure of all facts within his

knowledge. If the approver is found to have concealed something

essential, or to be tendering false evidence, the Public Prosecutor

would so certify, under Section 308 (1), whereupon, as the learned

ASG correctly submits, the approver would metamorphose into an

accused, and would be liable to be tried, separately, in respect of the

offence for which he had been tendered pardon, any other offence in

which he may be found to be involved, and the offence of providing

false evidence (with the leave of the High Court). The manner in

which such separate trial of the approver is to proceed, is provided in

the succeeding sub-sections of Section 308 of the Cr PC, and the

CRL.M.C. 1477/2020 Page 41 of 50

controversy before me does not require me to travel into that terrain,

as the impugned order, of the learned Special Judge, has rejected the

application, of the petitioner, on the ground that, as the approver had

not been examined as a witness, no question of revocation of the

pardon, granted to him, arises, and has reserved liberty, with the

petitioner, to re-approach at an appropriate stage.

42. Ex facie, the view adopted by the learned Special Judge, as

reflected in paras 23 to 25 of the impugned order, dated 5th March,

2020, is eminently in accordance with the law laid down in the

aforenoted decisions, as well as the statutory scheme of Sections 306

and 308 of the Cr PC, and does not merit any interference.

43. I am also in agreement, with Mr. Handoo, that the

empowerment, of the Public Prosecutor, with the authority to issue

certificate, under Section 308 (1), is also indicative of the fact that the

concealment of essential facts, or tendering of false evidence, by the

approver, has necessarily to relate to his evidence, as recorded during

trial under Section 306 (4), and cannot relate to his conduct during

investigation. Indeed, despite considerable research, I have been

unable to come across a single instance, in any reported decision, in

which the certificate of the Public Prosecutor, under Section 308 (1),

is based on the conduct of the approver during investigation, or his

response to queries put to him outside the Court. Nor has the learned

ASG drawn my attention to any such decision, despite contending,

emphatically, that Section 308 (1) did not specifically proscribe

issuance of certificate, by the Public Prosecutor, regarding

CRL.M.C. 1477/2020 Page 42 of 50

concealment of material fact, or giving false evidence by the accusedturned-

approver, on the basis of the proceedings in investigation.

44. Any such interpretation, in my view, would run against the very

grain of the scheme, statutorily engrafted in Sections 306 and 308 of

the Cr PC. In my perception, a holistic, and conjoint, reading of these

provisions, reveal an inexorable sequence, in which one proceeding

has to follow the next. The first step is tendering of pardon, to the

accomplice, under Section 306 (1). The next step – which has been

held to be mandatory and unrelenting, in decision after decision – is

the examination, of the approver, as a witness, under Section 306 (4).

The proceeding may, thereafter, follow one of two paths. In ordinary

course, the court, taking cognizance would, after recording the

evidence of the approver under Section 306 (4), commits the offence

to trial, to the jurisdictional Court. If, however, the evidence of the

approver, recorded under Section 306 (4), discloses concealment of

anything essential, or tendering of false evidence, the Public

Prosecutor would issue a certificate, to the said effect, under Section

308 (1), whereupon the approver would metamorphose into an

accused, and be tried, separately, as already noted hereinabove, for (i)

the offence in respect of which he had been tendered pardon, (ii) any

other offence in which he may be involved and (iii) with the leave of

the High Court, the offence of tendering false evidence. All the

decisions of the Supreme Court, cited hereinabove, hold, clearly, that

the very purpose of recording of the evidence, of the approver, under

Section 306 (4), is to ascertain whether he is complying with the

CRL.M.C. 1477/2020 Page 43 of 50

conditions of pardon, or not. The question of “revoking pardon”,

before any such statement is recorded, cannot, therefore, arise.

45. The mere fact that the Public Prosecutor has issued a certificate,

under Section 308 (1) of the Cr PC, even before the evidence of the

approver was recorded under Section 306 (4) cannot, in my view,

make any difference to this factual, or legal position. In my considered

opinion, the certificate, dated 18th October, 2019, of the Public

Prosecutor, issued in the present case, was an exercise in futility,

inasmuch as it was not preceded by the recording of the evidence of

the approver, under Section 306 (4), Cr PC. In the absence of any such

statement, or evidence, it was not open to the Public Prosecutor to

certify, regarding compliance, by the approver, of the conditions of

pardon. The certificate issued by the Public Prosecutor in the present

case, effectively, therefore, placed the cart before the horse.

46. The learned Special Judge cannot, therefore, be faulted, in any

manner, in rejecting the application, for “revocation of pardon”, as

filed by the petitioner before him, as premature, as no evidence, of the

approver, had been recorded under Section 306 (4), Cr PC.

47. I do not deem it necessary to examine the authority, of the

Public Prosecutor, to “peep into” the investigation, and the evidence

garnered therein. It is obviously not possible to hold that the Public

Prosecutor should remain a stranger to the investigative process,

which constitutes the terminus a quo, wherefrom the entire proceeding

emanates. Suffice it, therefore, to state that the certificate, under

CRL.M.C. 1477/2020 Page 44 of 50

Section 308 (1) of the Cr PC, to be issued by the Public Prosecutor, is

required to be based on the examination, of the approver, under

Section 306 (4), or any other evidence adduced by the approver during

trial, whether prior to committal or thereafter. The certificate of the

Public Prosecutor, issued in the present case, being based entirely on

the alleged non-co-operation, by the respondent, during investigation,

does not conform to the scheme of Section 306 and 308 of the Cr PC.

It could not, therefore, constitute, legitimately, the sole basis to seek

“revocation” of the pardon tendered to the respondent.

48. Had the evidence of the respondent been recorded, under

Section 306 (4), as statutorily ordained, it is quite possible that he may

have come clean, and disclosed all information known to him, without

giving any false evidence. Could, in such a circumstance, the Public

Prosecutor have issued the certificate under Section 308(1)? The

answer, in my view, has necessarily to be in the negative. The

evidence that ultimately becomes admissible, and relevant, would be

the evidence which emerges before the Court. Inculpatory material,

even if garnered during investigation, has to be proved before the

Court before the prosecution could seek to take advantage thereof.

The disclosure before the Court is what, therefore, may tilt the scale,

one way or the other. Candour, and a clean breast, are, therefore,

expected, of the approver, in his evidence before the Court, and, so

long as that is forthcoming, no case for invoking, against him, Section

308 (1) of the Cr PC can be said to exist, no matter how much he may

have prevaricated during the investigative process.

49. The learned ASG had sought to draw attention to the fact that,

of the two inhibiting circumstances, visualised in Section 308 (1),

namely “wilfully concealing anything essential”, or “giving false

evidence”, while the “leading of evidence” may be relatable to the

proceedings before the Court, there was nothing to indicate that the

“concealment”, of “anything essential” could not be extended to

include the investigative process. Though the submission,

semantically, may be attractive, viewed schematically, it fails to

impress. When one reads Section 308 (1) in juxtaposition, and in

conjunction, with 306 (1) and (4), it is apparent that the

“concealment”, as well as the “giving false evidence”, to which

Section 308 (1) alludes, both related to evidence before the Court.

50. That the above interpretation is correct, also becomes apparent

when one reads Section 306 (1), itself. In fact, Section 306 (1), even

by itself, aids in the interpretation of Section 308 (1). Section 306 (1)

opens by clarifying that the purpose of granting tenure of pardon, to

an accomplice-accused, case “obtaining (of his) evidence”. The

obtaining of evidence has to be by the Magistrate, Judicial Magistrate,

or Magistrate of the first class, tendering pardon; not by the

investigating officer. When, and where, does the Chief Judicial

Magistrate, the Metropolitan Magistrate, or the Magistrate of the first

class, obtain evidence? Obviously, and axiomatically, during trial.

Section 306 (1) goes on to stipulate that pardon may be tendered, to

the accomplice, “on condition of his making a full and true disclosure

of the whole of the circumstances within his knowledge…” It is

obvious that Section 306 (1) has to be read as a single provision, and

that different parts of the provision cannot conflict with each other.

Where the purpose of tendering pardon is obtaining of the evidence of

the person, by, and before, the Court, the “full and true disclosure”,

required to be made by the person, to whom pardon is being tendered,

has also, necessarily, to be before the Court. The Chief Judicial

Magistrate, or the Metropolitan Magistrate or the Magistrate of the

first class, cannot be said to be obtaining evidence during the

investigative process. Obtaining of evidence, by a court, is always

before the court itself. Full and true disclosure by the approver,

towards obtaining of such evidence, has also, therefore, to be before

the court itself, and not during the investigative process. The

“condition of pardon” therefore, applies to the proceedings before the

Court, and do not encompass the proceedings in investigation.

51. When one reads Section 308 (1) with this understanding, the

legal position becomes self-apparent. Interestingly, wilful

concealment of anything essential, or giving false evidence, by the

approver, do not, by themselves result in Section 308 (1) becoming

applicable. The Public Prosecutor is required to certify that the

approver is guilty of these indiscretions, and has, thereby, “not

complied with the condition on which the tender was made”. This

expression, in my view, is of fundamental significance. The approver

stands mulcted, in Section 308 (1), not because he has concealed

anything essential, or given false evidence, but because, by doing so,

he has not complied with the condition on which the tender was made.

If, therefore, pardon is tendered on condition of being forthright

before the court, it is only want of forthrightness, before the court,

which can be said to breach the condition of tender of pardon. A

juxtaposed reading of Section 308 (1) and Section 306 (1), therefore,

further reinforces the position, in law, that issuance of certificate, by

the Public Prosecutor, under Section 308 (1) would be justified only if

the approver conceals anything essential, or gives false evidence,

before the Court – which, therefore, must relate to the examination of

the approver, under Section 306 (1).

52. The Certificate, of the Public Prosecutor, in the present case,

does not allege that, before the Court, the respondent concealed

anything essential, or gave false evidence. In fact, a holistic reading of

the application, filed by the petitioner before the learned Special

Judge, reveals that the grievance of the petitioner is, essentially, that

the respondent has not cooperated during investigation, and has

withheld material in his possession. Mr. Handoo is right when he

contends that non-co-operation, during investigation, is not one of the

circumstances contemplated, by Section 308 (1), as justifying issuance

of certificate by the Public Prosecutor. Quite obviously, this is because

the condition, whereunder pardon is granted to the accomplice, is

candour before the court, and not candour before the investigating

officer. Non-cooperation with the investigative process, therefore, is

irrelevant, insofar as Section 308 (1) is concerned. So long as the

approver does not conceal anything essential before the Court, and

does not give false evidence before the Court, no occasion, for

issuance of any certificate, by the Public Prosecutor, under Section

308 (1), can be said to arise. The grounds, urged in the application of

the petitioner, preferred before the learned Special Judge did not,

therefore, make out a case for issuance of Certificate under Section

308 (1), by the Public Prosecutor. The learned Special Judge,

therefore, rightly chose not to “revoke the pardon” extended to the

respondent, on the basis of the said averments.

53. One of the serious apprehensions, voiced by the learned ASG,

was that, as a consequence of the impugned order of the learned

Special Judge, the prosecution would be compelled to lead the

evidence of the respondent, even after having found him to be an

untrustworthy witness. This apprehension, in my view, cannot be said

to rest on any sound factual, or legal, basis. Factually, the

apprehension is unfounded, as the learned Special Judge has not

rejected the application, of the petitioner, on merits, but has dismissed

it as premature, as no statement, of the respondent-approver, was

recorded during trial. Liberty has been reserved, even in the

impugned order, with the petitioner, to move an appropriate

application, at the appropriate stage. It cannot, therefore, be said that,

by operation of the impugned order, the petitioner has been compelled

to use the evidence of an untrustworthy witness. Legally, too, this

apprehension cannot sustain. One may only refer, in this context, to

the following statement of the law, as exposited by the High Court of

Lahore in Mahla v. Crown13 :

“The fact, however, that an approver appears to the court to

be an untrustworthy witness does not absolve the court from

complying with the statutory provisions.”

13 AIR 1930 Lah 95

The above passage from Mahla13, incidentally, was quoted and relied

upon, by the High Court of Madras, in Arusami Goundan6 which, in

turn, was quoted, with implied approval, by the Supreme Court in

Jagjit Singh2.

54. A preliminary objection had been advanced, by Mr. Handoo,

that the Cr PC does not contemplate “revocation of pardon”. Pardon,

once granted, he contends, can neither be revoked, nor withdrawn or

cancelled. Strictly speaking, this contention may be correct; however,

certain judicial decisions have referred to revocation of pardon, once

tendered under Section 306 of the Cr PC, following the issuance of

certificate, by the Public Prosecutor under Section 308 (1).

Interestingly, Ratanlal and Dhirajlal, too, in their “The Code of

Criminal Procedure” – which has, with the passage of time, become a

classic of sorts – specifically refer to “revocation of pardon”. In any

event, the impugned order, dated 5th March, 2020, does not reject the

application, of the petitioner, on the ground that no concept of

“revocation of pardon” exists in law, but proceeds to hold that the

application was not maintainable, as no statement, of the respondent,

had been recorded, before moving the application. This view, as

expressed by the learned Special Judge, eminently commends itself to

acceptance. It is not necessary, therefore, to enter, in any detail, into

the issue of whether, in law, “revocation of pardon”, as a concept,

exists, or not.

Conclusion

55. Resultantly, I find myself in agreement with the view,

expressed by the learned Special Judge, that, before the recording of

his statement under Section 306 (4) of the Cr PC, the application, of

the petitioner, as preferred before him, was not maintainable. I entirely

endorse the view, of the learned Special Judge, expressed in para 23 of

the impugned order, that the issuance of certificate, by the Public

Prosecutor, under Section 308 (1), Cr PC, had to be necessarily

preceded by the recording of the statement of the approver, under

Section 306 (4).

56. The petition, therefore, fails and is dismissed. Needless to say,

however, the liberty, reserved by the impugned order, with the

petitioner, to re-approach the learned Special Judge by an appropriate

application, at the appropriate stage, remains reserved.

57. Pending applications, if any, do not survive for consideration,

and are disposed of accordingly.

C. HARI SHANKAR, J.

JUNE 08, 2020

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