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PETITIONER: STATE (DELHI ADMN.)

       Vs.

RESPONDENT: JAGJIT SINGH

DATE OF JUDGMENT15/12/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) OJHA, N.D. (J)

CITATION:  1989 AIR  598            1988 SCR  Supl. (3)1093  1989 SCC  Supl.  (2) 770 JT 1988 (4)   715  1988 SCALE  (2)1578

ACT:    Criminal  Procedure  Code,  1973:  Section  306   Person accepting  tender  of pardon- To be examined as  witness  in Court of Magistrate taking cognizance of offence as well  as trial   Court-  Person  resiling  from  earlier   statement- Liability to be examined not absolved.

HEADNOTE:     Many  explosions  took place in May 1985  in  Delhi  and Uttar  Pradesh killing many persons. Consequently, a  number of cases were registered. In Delhi, FIR No. 238 of 1985  was registered wherein the respondent and another accused turned approvers  and were granted pardon under section 306 of  the Code  of  Criminal  Procedure, 1973.  Both  these  approvers however  resiled from their statements in the Court  of  the Committing Magistrate.     Four  Criminal  cases  pending  in  Meerut  were   later transferred  by the Supreme Court to the Court of the  Chief Metropolitan  Magistrate, Delhi, to be tried along with  the case arising out of FIR No. 238 of 1985.     In  the supplementary committal proceedings in case  FIR No.  238  of  1985, the respondent  objected  to  his  being summoned  as  an approver on the ground inter alia  that  he could  not be examined as a witness in the case  because  he was figuring as an accused person in the other four cases on the  same facts and circumstances, which were being  jointly tried.  The  Chief  Metropolitan  Magistrate  dismissed  the application.   The  High  Court  allowed  the   respondent’s revision petition and directed the State not to examine  the respondent as an approver in case F.I.R. No. 238 of 1985.     In  the  appeal  before this Court, it  was  inter  alia contended  that  the  prosecution  could  not  examine   the respondent as a witness because he had cast away the  pardon granted to him.     Allowing the appeal,     HELD:  1.  The  pardon granted  to  the  respondent  was accepted by him and he was examined as a prosecution witness in the Court of the Committing Magistrate, though he resiled from his statement there. [1097C]                                                  PG NO 1093                                                  PG NO. 1094

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   2.  It  is a mandate of the provisions of  the  Criminal Procedure Code to the prosecution to examine the approver to whom  pardon  had  been granted as a  witness  both  in  the Committing Court as well as in the trial court. [1097E]     3. 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 the whole of the  circumstances within  his knowledge relative to the offencc and  to  every other  concerned  whether as principal or  abettor,  in  the commission  thereof. It is because of this mandate that  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.  [1097H; 1098A-B]     4.  The respondent who has been granted pardon  in  case F.I.R. No. 238 of 1985 has to be examined by the prosecution in  the trial court no matter that he has resiled  from  his earlier  statement and tried to conceal what was within  his knowledge with regard to the offence in question. [1100D]     In re: Arusami Goundan, AIR 1959 Mad. 274 and Emperor v. Shandino Bhaniperto, AIR 1940 (Sind) 114 referred to.     5. Once an accused is granted pardon under section  306, he  ceases  to be an accused and becomes a witness  for  the prosecution.  So  long as the prosecution does  not  certify that he has failed to make a full and true disclosure of the whole  of the circumstance within his knowledge relating  to the   offence,  he  continues  to  be  a  witness  and   the prosecution is under obligation to examine him as a  witness both in the Committing Court as well as in the trial  court. [1099H; 1100A-B]     A.J.  Peiris  v.  State of Madras,  AIR  1954  (SC)  616 referred to.     6.  A  witness is legally bound to answer  any  question which is relevant to the matter in issue even if the  answer to  such question is likely to incriminate him  directly  or indirectly. [1100G]     7. The proviso to section 132 of the Indian Evidence Act clearly  protects  a witness from being  prosecuted  on  the basis  of the answers given by him in a criminal  proceeding which  tend  to  incriminate  him  directly  or  indirectly. [1101A]                                                 PG NO. 1095     8. The apprehension of the respondent that his  evidence as  approver  will  be used against him in  the  other  four criminal  cases where he figures as an accused  was  without any  basis. On the other hand, he was  absolutely  protected from criminal prosecution on the basis of the evidence to be given  by  him  when  examined  by  the  prosecution  as  an approver. [1101B-C]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 640 of 1988.     From the Judgment and Order dated 27.4.1987 of the Delhi High Court in Crl. Rev. No. 221 of 1986.     B.  Datta,  Additional Solicitor  General,  Kitty  Kumar Mangalam and Miss A. Subhashini for the Appellant.     Hardev Singh and R.K. Agnihotri for the Respondent.     The Judgment of the Court was delivered by     RAY, J. Special leave granted. Heard learned counsel for the parties.     The  prosecution case, in short, is that to create  fear

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and terror to commit murder and to aggravate tense situation some  persons hatched a conspiracy to massacre  the  general public by placing transistor bombs at public places and also by  placing them in public transports as trains, buses  etc. Many explosions took place in May 1985 in Delhi and parts of Uttar  Pradesh  in  consequence whereof  many  persons  were killed  in Delhi and some places in Uttar  Pradesh.  Several cases  were  registered  in  different  police  stations  of Aligarh,  Ghaziabad, Meerut and Khekra etc. In Delhi  F.I.R. No.  238 of 1985 was registered i.e. State v.  Kartar  Singh Narang  etc. wherein all the accused persons  named  therein were  arrested  except  one Gurdeep  Singh  Sehgal  who  was declared as a proclaimed offender. The accused Jagjit  Singh and  Gurvinder Singh turned approvers and they were  granted pardon under Section 308 of the Code of Criminal  Procedure, 1973.  They  were  examined  as P.W. 1 and  P.W.  2  in  the committal case proceeding in the court of Chief Metropolitan Magistrate  on  December  24,  1985.  Both  these  approvers resiled from their statements in the court of the Committing Magistrate. The accused persons were committed to the  Court of Sessions to stand their trial for offences under Sections 121,  121A, 153, 153A, 302 and 307 I.P.C. and sections 3,  5 and 6 of Explosives Substances Act.                                                  PG NO. 1096     On  February 27, 1986, Surjit Kaur, another  accused  in the Transistor Bomb Case, against whom cases were pending in the  Meerut, Ghaziabad and Aligarh Districts of U.P.,  moved an  application  under Section 406 of the Code  of  Criminal Procedure  before this Court for transfer of  criminal  case pending  in  the court of Meerut to a court in  Delhi.  This Court  after hearing Counsel for the State of Uttar  Pradesh has directed that criminal cases referred to at Serial  Nos. 1, 2, 3 and 5 in paragraph 2 of the transfer petition  stand transferred   to  the  Court  of  the   Chief   Metropolitan Magistrate,  Delhi  and shall be tried along with  the  case instituted   in   the  Court  of  the   Chief   Metropolitan Magistrate,  Delhi arising out of F.I.R. No. 238 of 1985  of Police Station, Patel Nagar, New Delhi. When the matter  was taken  up in the Court of Sessions, the  respondent,  Jagjit Singh,  the approver moved an application that he cannot  be examined as a witness as he had not accepted the pardon  and did not support the prosecution version and he was forced to make a wrong statement by the police before the Metropolitan Magistrate. The application was rejected by the Trial  Judge after hearing the arguments of the parties on March 1, 1986.     Against this order, a Criminal Revision Petition No.  92 of  1986  was filed by the respondent, Jagjit Singh  in  the High  Court at Delhi. This application was heard by  Jagdish Chandra,  J  who dismissed the petition on August  12,  1986 holding  that  the  mandate of the law  requiring  that  the approver  shall  be  examined  both  before  the  Committing Magistrate as well as during trial as a witness, is  binding not only on the trial court and the prosecution but also  on the approver as well.     Thereafter,  one  of  the  accused  person  who  was   a proclaimed offender was arrested and a supplementary challan was  filed in the Court of Metropolitan  Magistrate,  Delhi. The respondent, Jagjit Singh was sought to be examined as an approver  by  the  prosecution, in  the  said  supplementary committal  proceeding  in  F.I.R.  No.  238  of  1985.   The respondent objected to his being summoned as an approver  on the  ground  inter  alia that he cannot  be  examined  as  a witness in a case though he is figuring as an accused person in  other  five cases on the same  facts  and  circumstances which  are  being  jointly  tried.  The  Chief  Metropolitan

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Magistrate,  Delhi  dismissed the application by  his  order dated  October  6, 1986. Against this order  the  respondent Jagjit  Singh  filed Criminal Revision Petition No.  221  of 1986.  M.K. Chawla, J after hearing the parties allowed  the Revision Petition and directed the State not to examine  the respondent-approver as an approver in case F.I.R. No. 238 of 1985.                                                  PG NO. 1097     Aggrieved by this order this appeal by special leave has been filed by State.     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 pardon  granted  to  him by the  Magistrate.  He  should  be arrayed  as  an accused in the case F.I.R.  No.  238/85  and should  be tried as an accused along with other  accused  in the said case. This contention is not tenable in as much  as the  pardon  granted  to the respondent,  Jagjit  Singh  was accepted by him and other approver, Gurvinder Singh who were examined as P.W. 1 and P.W. 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. This  submission,  in  our considered opinion, is not tenable in as much 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.     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                                                  PG NO 1098 granted pardon had to comply with the condition of making  a full  and true disclosure of 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 can not 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

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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.  It has  been submitted in this connection by citing a  decision In  re  Arusami  Goundan, AIR 1959  (Madras)  274  that  the accomplice  who has been tendered a pardon if at  any  stage either wilfully conceals material particulars or gives false evidence and thereby fails to comply with the conditions  on which  pardon  was tendered to him and  thereby  incurs  its forfeiture he should not be compelled by the prosecution  to be examined as a witness before the trial court. It has been observed  even  in  the said case  that  the  provisions  of Section  337(2) of the old Code of Criminal Procedure,  1898 (5 of 1898) provide that the approver who has been  tendered pardon must be examined both in the Committing Court and the Court of Sessions it has been held that:     "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 court,  or,  it  may  be in  he  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  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                                                  PG NO 1099 of statutory interpretation can it be said that S. 339(1) is dependent  on or connected with S. 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."     This decision has been considered in Emperor v. Shandino Dhaniparto,  AIR  1940 (Sind) 114 wherein it has  been  held that:     "When  an  accused  after accepting  pardon  denies  all knowledge of facts before the Committing Magistrate and  the case  is  committed to Sessions Court the pardon  cannot  be forfeited  before  the accused is examined in  the  Sessions Court.  Once  a pardon is tendered and accepted,  S.  337(2) renders  it  obligatory for the prosecution to  examine  the approver  both in the Committing Magistrate s Court  and  in the Sessions Court should the case be committed. Failure  of the  prosecution  to examine the approver  in  the  Sessions Court vitiates the trial."     The  provisions of Sections 337 and 339 of the old  Code of Criminal Procedure are almost in identical terms with the provisions  of Sections 306 and 308 of the Code of  Criminal Procedure, 1973. This submission on a plain reading of these

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sections, cannot be sustained.     It  has  been  urged  with  great  vehemence  that   the appellant,  Jagjit Singh was granted pardon with  regard  to case  F.I.R. No. 238 of 1985 whereas his name appears as  an accused in the other four cases which have been directed  to be tried along with above case wherein the facts are  almost similar. The appellant-approver in such circumstances should not  be examined by the prosecution as a witness in as  much as  his  evidence may be used in the  other  criminal  cases wherein  he  figures  as an accused.  This  is  against  the protection  given  by Article 2(3) of  the  Constitution  of India.  It  has, therefore, been submitted  that  the  order dated April 27, 1987 passed in Revision Petition No. 221  of 1986  directing the State not to examine the approver  as  a witness should not be set aside. This contention is also not tenable  in  as much as once an accused  is  granted  pardon under  section  306 of the Code of  Criminal  Procedure,  he ceases  to  be  an accused and becomes  a  witness  for  the prosecution. The only condition imposed by the provisions of the  Act  is  that the approver must make a  full  and  true disclosure  of  the whole of the  circumstances  within  his                                                  PG NO 1100 knowledge  relating  to  the  offence  and  to  every  other concerned,   whether  as  principal  or  abettor,   in   the commission  thereof.  So long as the  Prosecution  does  not certify  that  he has failed to do so he continues to  be  a witness  and the prosecution is under obligation to  examine him as a witness both in the Committing Court as well as  in the trial court. This has been made very clear by this Court in the case of A.J. Peiris v. State of Madras, AIR  1954(SC) 616 wherein it has been observed that:     ".....We  think that the moment the pardon was  tendered to  the accused he must be presumed to have been  discharged whereupon he ceased to be an accused and became a witness."     We have already held hereinbefore that sub-section 4  of Section  306  casts  an obligation  on  the  prosecution  to examine the approver both in the Committing Court as well as in  the trial court. So the appellant who has  been  granted pardon  in case F.I.R. No. 238/85 has to be examined by  the prosecution in the trial court no matter that he has resiled from  his  earlier statement and tried to conceal  what  was within his knowledge with regard to the offence in question. It  will  be pertinent to mention here Section  132  of  the Indian Evidence Act, 1872 which lays down that:     "A  witness  shall  not be excused  from  answering  any question as to any matter relevant to the matter in issue in any  suit or in any civil or criminal proceedings, upon  the ground  that the answer to such question will criminate,  or may tend directly or indirectly to criminate, such  witness, or  that it will expose, or tend directly or  indirectly  to expose, such witness to a penalty or forfeiture of any kind.     Proviso-  Provided that no such answer, which a  witness shall be compelled to give, shall subject him to any  arrest or   prosecution,  or  be  against  him  in   any   criminal proceeding,  except a prosecution for giving false  evidence by such answer.     Therefore,  a  witness is legally bound  to  answer  any question  which is relevant to the matter in issue  even  if the  answer  to  such question is likely  to  criminate  him directly  or  indirectly. Proviso to Section  132  expressly provides  that such answer which a witness is  compelled  to give  shall  not subject him to any  arrest  or  prosecution                                                  PG NO 1101 nor  the  same  can be proved against him  in  any  criminal proceeding except a prosecution for giving false evidence by

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such answer. The provisions of proviso to Section 132 of the Indian  Evidence  Act clearly protect a witness  from  being prosecuted  on  the basis of the answers given by him  in  a criminal proceeding which tend to criminate him directly  or indirectly.  In view of this provision, the apprehension  of the  respondent that his evidence as approver will  be  used against  him  in  the other four  criminal  cases  where  he figures  as  an accused is without any basis. On  the  other hand,  he is absolutely protected from criminal  prosecution on  the  basis  of  the evidence to be  given  by  him  when examined by the prosecution as an approver in the said case. This  submission  of  the  respondent  is,  therefore,   not tenable.  It  is pertinent to refer in this  connection  the decision  of  this Court in Laxmipat Choraria  and  Ors.  v. State  of Maharashtra. [1968] 2 SCR 626 wherein it has  been observed by Hidayatullah, J as he then was that:     ".......    Under s. 132 a witness shall not be  excused from answering any question as to any matter relevant to the matter  in issue in any criminal proceeding  (among  others) upon  the  ground  that the answer  to  such  question  will incriminate or may tend directly or indirectly to expose him to  a  penalty or forfeiture of any kind. The  safeguard  to this compulsion is that no such answer which the witness  is compelled  to give exposes him to any arrest or  prosecution or can ii be prove i against him in any criminal proceeding except  a  prosecution  for giving false  evidence  by  such answer."     So Section 132 of the Evidence Act sufficiently protects him since his testimony does not go against him.     For  the reasons aforesaid, the appeal is  allowed.  The judgment  and order dated April 27, 1987 passed in  Revision Petition No. 221 of 1986 is hereby set aside. R.S.S.                                       Appeal allowed.