Whether accused can request to cross-examine approver after pardon granted to him is recalled?

 Learned Judge however, on the basis of decision in the case of Abu Salem (supra) held that the choice is with the approver, whether to

continue or not to continue as an approver. Learned Judge has

observed that this position is supported by decision in the case of

Abu Salem (supra). In my view, the learned Additional Sessions

Judge has not properly considered the facts in the case of Abu

Salem. In the case of Abu Salem, the co-accused Riyaz Siddique

was an approver. At the time of his examination-in-chief, the

learned Prosecutor found that he was not obeying the conditions of

pardon and not disclosing the true and correct facts related to the

crime. Learned Special Prosecutor therefore issued a certificate in

terms of Section 308 of the Cr.P.C. and stated that the approver has

not complied with the conditions on which the pardon was tendered

to him and prayed that the pardon be withdrawn and he be tried

separately. The pardon was therefore withdrawn/fortified. Learned

Special TADA Court Judge ordered him to be tried separately.

19 In the case of Abu Salem (supra) after withdrawing the

pardon the Advocate for the accused Abu Salem made a request to

the Court to allow him to cross examine the approver. Learned

Judge of the TADA Court granted this request and allowed the

Advocate to cross examine the approver after withdrawing his

pardon. The matter was carried to the Supreme Court. The

Hon’ble Supreme Court after considering the facts of the case and the law held that after withdrawal of the pardon on certificate of public prosecutor such person is liable to be tried as an accused. Such person cannot be further examined by the prosecution. He ceases to be the approver and the witness for the prosecutor. On withdrawal of the pardon, he is relegated to his original position of an accused. He has to be therefore tried separately for the original offences for which he was prosecuted and for the offence of giving false evidence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO. 472 OF 20 23

State of Maharashtra Vs  Madhuri Badrinarayan Gote,

CORAM : G. A. SANAP, J.

DATE : 11/08/2023.

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