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]
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PG NO. 1094
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
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
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
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
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
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.