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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.