Wednesday, 10 June 2020

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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