In view of the facts, circumstances and the provisions of law, the only point that falls for consideration is as to whether the approver can be allowed to not press the application made to become an approver before the evidence of the approver is recorded and the procedure provided under Section 308 of the Cr.P.C. is followed ?{Para 13}
14 In my view, the answer to this question has to be emphatic ‘No’. Once the pardon is tendered on such conditions and the conditions are accepted by the accused then the said accused under law gets discharged from the case. The accused then becomes approver/witness for the prosecution. The approver at the stage of trial may support or may not support the case of the prosecution. However, once the pardon is tendered the approver has no choice than to give evidence before the Court as an approver. It needs to be stated that once the approver steps into witness box the approver has prerogative to depose according to his or her wish. In this manner, nobody can compel the approver to give a particular evidence before the Court.
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
1 Heard.
2 Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Advocates for the parties.
3 In this writ petition, filed by the State, challenge is to
the order dated 18.05.2023 passed by the learned Additional
Sessions Judge, Washim whereby the learned Sessions Judge rejected
the application made by the Special Prosecutor. In this application
Exh. 69, the prayer was made by the prosecution to reject the
vakalatnama filed by the Advocate Mr More for the approver and to
shift the respondent approver Madhuri Gote to Central Jail, Akola.
The respondent herein referred to as ‘Approver’ was co-accused in
crime No. 23/2020 registered at Police Station Washim City for the
offences punishable under Sections 302, 364-A, 363, 201 & 120-B
of the Indian Penal Code. The crime involved murder of 15 years
old niece of the informant. The approver was accused No.2. The
accused No.1 is the husband of the approver. As per the case of the
prosecution, the minor girl was kidnapped, taken to secluded place,
administered intoxicant and strangulated. The accused burnt the
death body and destroyed the evidence. The investigation in the
crime led to filing of the chargesheet against accused No.1 and the
approver. Learned Magistrate committed the case to the Sessions
Court for trial.
4 During the pendency of the case before the Sessions
Court the approver made an application dated 30.11.2021 and
expressed her desire to become an approver. The copy of this
application, made by the approver, was provided to the learned
Special Public Prosecutor, appointed for conducting the case.
Learned Special Public Prosecutor thereafter made an application
and prayed before the Court to tender pardon to the approver/
accused No.2.
5 The say of the approver was called by the learned
Judge. The accused No.2 gave her say and agreed to become an
approver and to narrate the true facts related to the crime, on oath
before the Court. Learned Additional Sessions Judge, Washim by
order dated 17.02.2022 rejected the application made by the
approver as well as the subsequent application made by the learned
Special Public Prosecutor.
6 The approver/accused No.2 being aggrieved by this
order challenged the same before this Court. This Court (Coram:
Vinay Joshi, J) set aside the order dated 17.02.2022 passed by the
learned Additional Sessions Judge, Washim. This Court (Coram:
Vinay Joshi, J) by way of consequential relief allowed the application
made by the prosecution to tender pardon to the approver on
condition of accused No.2 making a full and true disclosure of
whole of the circumstances within her knowledge relating to the
offence.
7 It is therefore apparent that from the date of this order,
being an approver, accused No.2 became the witness for the
prosecution. It is not out of place to mention that on the date of
acceptance of an application of the approver and on tender of a
pardon, the approver by deeming fiction gets discharged from the
case. The approver then becomes the witness and does not remain
an accused.
8 In this case, the charge was framed on 06.05.2021.
The application to become an approver was made after framing the
charge. Recording of evidence of prosecution witness No.1
commenced on 02.01.2023. By the time the impugned order was
passed, three witnesses were examined by the prosecution. On
19.04.2023, in the midst of recording of the evidence of
prosecution witnesses the approver filed a pursis and contended that
she has not committed the crime. She has further stated that the
application made by her to become an approver was due to
ignorance of law and on the advice of the advocate. She further
contended that she was withdrawing her application, made to
became an approver.
9 On 26.04.2023, one Advocate Mr More appeared for
the approver and made an application at Exh. 67. He made a prayer
to allow him to obtain the signature of the approver on Vakalatnama
and to appear for her. Learned Special Public Prosecutor then made
an application Exh. 69 and prayed for rejection of the vakalatnama
filed by Advocate Mr More and to shift approver Madhuri Gote to
Central Jail, Akola. In this application, learned Special Public
Prosecutor stated that the pardon tendered by the Court, on terms
and conditions, to the approver cannot be allowed to be withdrawn
in this manner. For the purpose of withdrawal of the pardon the
procedure provided under Section 308 of the Code of Criminal
Procedure, 1973 (For short ‘the Cr.P.C.’) has to be followed. It was
stated in the application that vakalatnama filed by the Advocate for
the approver was not in accordance with law.
10 This application at Exh.69 was opposed by the
Advocate for the accused. It was contended that the application
made to become an approver was not pressed by the approver and
therefore, she was relegated to her original position as an accused.
11 Learned Additional Sessions Judge by order dated
18.05.2023 rejected the application made by the prosecutor.
Against this order the state has filed this writ petition. The approver
is represented by Advocate Mr S. S. Das.
12 I have heard learned Additional Public Prosecutor Mrs
Mayuri Deshmukh and learned Advocate Mr S. S. Das for the
respondent/approver. Perused the record and proceedings.
13 In view of the facts, circumstances and the provisions of
law, the only point that falls for consideration is as to whether the
approver can be allowed to not press the application made to
become an approver before the evidence of the approver is recorded
and the procedure provided under Section 308 of the Cr.P.C. is
followed ?
14 In my view, the answer to this question has to be
emphatic ‘No’. Learned Additional Sessions Judge relying upon a
case of State of Maharashtra .v/s. Abu Salem Abdul Kayyum Ansari
and Ors. (2010) 10 SCC 179 observed that in view of the application made by the
approver, not pressing her request to became an approver, she was
relegated to the position of an accused. In my view, the learned
Judge has not properly applied this decision to the facts of the case.
He has also not properly appreciated the provisions of Cr.P.C. The
scheme of the Chapter XXIV and particularly Sections 306 to 308
of the Cr.P.C. is relevant for this purpose. Section 306 provides for
tender of pardon to accomplice. Section 306 inter alia provides for
tender of pardon by the Magistrate at any stage of the investigation
or inquiry or the trial of the offence. Section 307 provides for the
power of the Court to direct the tender of pardon after commitment
of a case but before the judgment is passed in the case. The only
difference between these two provisions is that when the pardon is
tendered by the Magistrate under Section 306 Cr.P.C. the statement
of the approver must necessarily be recorded by the Magistrate. In
case of tender of pardon under Section 307 by the Court after
commitment of a case such recording of statement is not necessary.
This is settled position in law. In the case of Narayan Chetanram
Chaudhary and Another .v/s. State of Maharashtra (2000)8 SCC 457 it is held that while granting pardon under Section 307 of the Cr.P.C., the
trial Court is obliged to comply with the requirements of Section
306 (1) and not with the requirements of Section 306 (4) of
Cr.P.C.
15 It is to be noted that before tender of the pardon to the
accused the inquiry is made by the Court. The main object of
tender of a pardon is to obtain at the trial the evidence of any person
supposed to have been directly or indirectly concerned or privy to
any offence. The pardon is always tendered subject to the condition
of his or her making full and true disclosure of the whole
circumstances within his knowledge related to the offence and to
every other person concerned, whether as a principal or abettor in
the commission of crime. Once the pardon is tendered on such
conditions and the conditions are accepted by the accused then the
said accused under law gets discharged from the case. The accused
then becomes approver/witness for the prosecution. The approver
at the stage of trial may support or may not support the case of the
prosecution. However, once the pardon is tendered the approver has
no choice than to give evidence before the Court as an approver. It
needs to be stated that once the approver steps into witness box the
approver has prerogative to depose according to his or her wish. In
this manner, nobody can compel the approver to give a particular
evidence before the Court.
16 Section 308 of the Cr.P.C. is important provision
which provides for trial of person not complying with conditions of
pardon. Perusal of Section 308 of the Cr.P.C would show that save
and except the compliance of Section 308 (1), the approver cannot
be relegated to his or her original position as an accused. Perusal of
Section 308(1) Cr.P.C. would show that after acceptance of pardon
in view of the scheme of Sections 306 to 308 the approver has no
choice or option or a right to not press or withdraw the application
made to become an approver. The mechanism in this regard has
been provided in Section 308 and the said mechanism has to be
strictly complied with to relegate the approver to the position of an
accused. Section 308 in its entirety is relevant for the purpose of
this order. It is therefore extracted below:
308. Trial of person not complying with 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 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.”
17 In terms of sub section (1) of Section 308 in order to
relegate the approver to the position of the accused the public
prosecutor must certify that in his opinion the approver has, either
by wilfully concealing anything essential or by giving false evidence,
has not complied with the conditions on which the tender was
made. Only after such certificate being given by the public
prosecutor, the pardon tendered to the approver can be withdrawn
and such person then can be tried for the offence in respect of which
the pardon was tendered and/or for any other offence of which he or
she appears to have been guilty in connection with the same matter
and also for the offence of giving false evidence. Further mandate of
Section 308 provides that on withdrawal of the pardon such person
shall not be tried jointly with any of the other accused. The trial of
the person whose pardon is withdrawn is required to be tried
separately for the main offence as well as for the offence of giving
false evidence. Sub Sections 2 3, 4 and 5 of Section 308 of the
Cr.P.C. provides the procedure for trial of the approver on
withdrawing the pardon. It is therefore apparent that there is no
provision under the Cr.P.C. which empowers or enables the person
on acceptance of pardon on terms and conditions to make an
application of this kind and to pray for withdrawal of that
application made to become an approver. It is to be noted that on
acceptance of tender of a pardon the accused gets discharged from
the case. The said person then becomes the witness for the
prosecution. The said person therefore without following the
procedure under Section 308 (1) of the Cr.P.C. cannot be relegated
to the position of the accused. It appears that the learned Additional
Sessions Judge has not properly considered the provisions of law.
18 Learned Additional Sessions Judge in Para 9 of the
order has considered the judgment of the Hon’ble Supreme Court
in the case of State (Delhi Administration) .v/s. Jagjit Singh AIR 1989 SC 598. In this case it is held that once the pardon is granted to the accused, without examining him as a prosecution witness and without certificate of a prosecutor the pardon cannot be withdrawn. 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.
20 In my view, in order to relegate the approver to the
position of an accused the stage and the conditions as contemplated
under Section 308 (1) of the Cr.P.C. must be established in a given
case. In this case, respondent/ approver did not step into the
witness box. Before stepping into the witness box she made this
application to withdraw her application to become an approver.
Learned Judge in this case has completely missed very essence and
substance of the provisions of law. The decision in the case of Salem
is not applicable in this case, In order to rely and apply the decision
in the case of Salem the strict compliance of Section 308 (1) of the
Cr.P.C. must be ensured by the Court. It is needless to say that
whether to give evidence or not to give any evidence after stepping
into the witness box on the oath would be the prerogative of the
witness. Witness cannot be compelled to make a particular
statement. It needs to be stated that if the approver fails to comply
the conditions of a pardon then the consequences provided under
law have to be considered. The approver therefore cannot be tried
with the remaining accused. The trial of the approver has to be
separate. The object is in-built in the provision. The main object is
to get the first hand account of the incident through the mouth of
the approver, who in every case happens to be a guilty partner with
the co-accused. In my view, therefore, learned Judge has not
properly appreciated the facts, law and the decisions in the case of
Abu Salem (supra). Learned Judge has completely misdirected
himself in addressing the question. Therefore, the order is required
to be quashed and set aside. Accordingly, the writ petition is
allowed.
21 The order dated 18.05.2023 passed by the learned
Additional Sessions judge, Washim is quashed and set aside.
22 Learned Additional Sessions Judge consistent with the
pardon tendered to the approver and accepted by the approver on
terms and conditions shall examine the approver as and when she is
presented before him as a witness.
23 As far as the application made by the prosecution to
transfer the approver from Washim Central Prison to Akola Central
Prison is concerned learned Additional Sessions Judge shall decide it
in accordance with law, keeping in mind the facts and circumstances
obtained on record.
24 The writ petition Stands disposed of. Rule made
absolute in the above terms.
(G. A. SANAP, J.)
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