State of Maharashtra
Vs. Abu Salem Abdul Kayyum Ansari & Ors.  INSC 824 (5 October 2010)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1925 OF 2008 State
of Maharashtra ... Appellant Abu Salem Abdul Kayyum Ansari & Ors. ...
R.M. LODHA, J.
question which this Court has to arrive at a conclusion in this criminal appeal
preferred by the State of Maharashtra under Section 19 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 ( for short `TADA Act'), is
whether, the accused has a right to cross examine an accomplice who has been tendered
in evidence by the prosecution as approver but later on pardon tendered to him
was withdrawn on a certificate of the Public Prosecutor under 1 Section 308 of
the Code of Criminal Procedure, 1973 (for short, `Cr.P.C.') and he (approver)
has not been further examined by the prosecution as its witness.
aforesaid question arises in this way. A certain Pradeep Jain (builder) was
allegedly eliminated by hired gangsters on March 7, 1995 and his brother Sunil
Jain was attempted to be killed on that day for not succumbing to the pressure
of parting with their landed property situate in Mumbai A crime being CR No.
145 of 1995 was registered with D.N. Nagar Police Station, Mumbai.
After completion of
investigation, initially few persons were arrested and they were charge sheeted
and tried for the offences punishable under Sections 302, 307, 120B, 23, 114
IPC, Sections 3, 25(1B)(a), 5, 27 of the Arms Act and Sections 3(2)(i),
3(2(ii), 3(3), 3(5), 5, 6 of TADA Act by the Judge, Designated Court, Mumbai. The
present respondents could not be tried as they were absconding. The Judge,
Designated Court, vide judgment dated August 5, 1997 acquitted the accused who
were tried. The State of Maharashtra carried appeal in the matter before this
Court and vide judgment dated July 11, 2001, this Court partly set aside the
judgment of the Judge, 2 Designated Court, Mumbai and convicted some of the
accused who were tried.
September 18, 2002 Abu Salem Abdul Kayyum Ansari (respondent No. 1) and one
Monika Bedi were arrested in Portugal. They were extradited and brought to
India. The extradition was granted for respondent no. 1 in respect of Pradeep
Jain murder case, Bombay Bomb Blast case and Ajit Diwani murder case. On
November 11, 2005, as soon as the respondent no. 1 was brought to India, he was
arrested by Central Bureau of Investigation (CBI) in Bombay Bomb Blast case and
later on he was taken into custody by Anti Terrorist Squad, Mumbai in
connection with Pradeep Jain murder case. The respondent no.1 was charged along
with Mohd. Naeem Abdul Rahim Khan (respondent no. 2), Riyaz Ahmed Siddique
(respondent no. 3), Mohd. Hassan Mehendi Hassan (respondent no. 4) and
Virendrakumar Biharilal Jhamb (respondent no. 5), having conspired in Dubai
with few others to murder Pradeep Jain and that in pursuance of this
conspiracy, Pradeep Jain was murdered on March 7, 1995. On April 28, 2006, the
police submitted charge sheet against the present respondent nos. 1 to 5 and
accordingly TADA Special Case No. 1 of 2006 began before the 3 Court of
Designated Bombay Blast Cases, Greater Mumbai (for short, `Designated Court') .
July 3, 2006, the respondent no. 3 (Riyaz Ahmed Siddique) addressed a letter to
Assistant Commissioner of Police, Anti Terrorist Squad (I.O.) expressing his
desire to disclose truly and fully the facts pertaining to conspiracy which had
taken place at Dubai in connection with the murder of Pradeep Jain.
July 7, 2006 the Investigating Officer made an application under Section 307
Cr.P.C. before the Designated Court that the respondent no. 3 may be tendered
pardon on his readiness and willingness to disclose true and correct facts
about the conspiracy hatched by them for the murder of Pradeep Jain.
July 18, 2006 the Designated Court tendered pardon to the respondent no. 3
under Section 307 Cr.P.C. and permitted the prosecution to examine him as
witness in the trial. In that order, the Designated Court noted that the
approver is supposed to depose true and correct facts pertaining to the crime and
that he (approver) has accepted the pardon with that condition.
September 18, 2008, the respondent no. 3 (approver) was called as witness for
the prosecution; he went into the witness 4 box to give evidence but after some
time, he requested the Court to adjourn the matter as he was observing Ramzan
fast and feeling weak. The next day i.e. September 19, 2008, further deposition
of approver began but the Special Public Prosecutor realized that witness was
not desirous of telling the Court about conspiracy that led to the murder of
Pradeep Jain. The Special Public Prosecutor put a specific question to the
approver as to whether he wanted to tell the Court about the conspiracy of
Pradeep Jain murder to which his answer was in the negative. Immediately, the
Special Public Prosecutor issued a certificate under Section 308 Cr.P.C. that
the approver has not complied with the condition on which pardon was tendered
to him and, therefore, he may be tried separately. The order dated September
19, 2008 to the extent it is relevant reads as follows:
" ......... The
Id Spl. PP files certificate u/sec. 308 of Cr.P.C. conveying that the approver
witness Riyaz Ahmed has committed breach of conditions of the Pardon and the
Pardon may be withdrawn and will be tried for same offence separately . . . . .
. . ."
The matter was then
adjourned to September 23, 2008.
September 23, 2008, the Designated Court passed the following order:
Mr. Sudeep Pasbola requests the court to allow him to cross examine the
approver who is certified by the Id. Spl. PP to have committed breach of
conditions of Pardon.
The Id. Spl. PP
opposes the said request on the ground that once the PP forfeits the pardon the
witness relegates back to the status of accused to be tried separately for the
same offence and as such looses his status as witness of the prosecution,
therefore, his entire evidence though till be on record but cannot be used for
any purpose and as such the question of cross examining such hostile witness by
other accused does not arise.
Mr. Pasbola submits
that merely withdrawal of pardon by the Id. Spl. PP is not sufficient to
transpose approver as an accused and his evidence so far recorded cannot be
taken away from record. It is not law that if the witness does not support the
prosecution he is always telling lies. The witness may not support the
prosecution in the very language it wants and therefore, the evidence recorded
by the Court in the proceedings cannot be wiped out.
Adv. Shri Pasbola has
relied on 1978 Cr.L.J. NOC 126 Andhra Pradesh wherein the Hon'ble Court has
observed that accused are entitled to cross examine the approver with regard to
his statement u/sec. 162 of Cr.P.C.
In the present case,
the statement of approver i.e.
Riyaz Ahmed Siddiqui
is not recorded after grant of Pardon as Pardon is granted u/sec. 307 of
Cr.P.C. by a Sessions Judge and therefore, no question of recording any
evidence in Committal Court did arise.
confessional statement of said witness u/sec. 15 of TADA Act was also recorded
after his 6 arrest while his statement u/sec. 161 of Cr.P.C. was also recorded.
In ordinary course if the witness becomes hostile the prosecution and the
defence both are entitled to cross examine him. The evidence of hostile witness
cannot be thrown away out right. The court can use it in favour of prosecution
or defence to the extent it supports them and after weighing it can accept it
partially in favour of any of the parties to the trial. Thus if the law says
that the entire evidence of hostile witness can not be ignored and still can be
used there is no reason to block the defence from cross examining such witness
who in view of prosecution is of no value for it since he declines to support
the prosecution. Once the person enters into the witness box as a witness the
record of his deposition remains to be recorded of evidence of witness and as
such accused is entitled to exercise his rights conferred on him by virtue of
Sec. 162 of Cr.P.C. to contradict him with his previous statements. While the
prosecution can not do so even if its witness turns hostile. The prosecution
has only choice to bring supporting material through the cross examination by
Id. Public Prosecutor. What action is to be taken against the approver who commits
breach of condition of Pardon is to be decided later on as Sec. 308 of Cr.P.C.
says that such person may be either tried for offence in respect of which the
pardon was so tendered or for any other offence which appears to have been
committed by him and also for giving false evidence. So the stage to decide
which mode is to be adopted against such an approver is yet to come.
because prosecution disowned its witness he does not loose a status of witness
unless prosecuted separately in view of provisions of Section 308 of Cr.P.C.
and as such accused has every right to cross examine such a witness. The
question of probative value of his evidence is distinct one.
However, in my
opinion the defence has statutory right to cross examine the hostile witness or
approver and as such accused in this case are entitled to exercise the right by
cross examining the witness Riyaz Ahmed Siddiqui ."
State of Maharashtra is aggrieved by the above order whereby permission has
been granted to the defence to cross examine the respondent no. 3.
306 of Cr.P.C. makes a provision for tender of pardon to accomplice. It reads
as follows:- "S.-306. -Tender of pardon to accomplice. - (1) With a view
to obtaining the evidence of any person supposed to have been directly or
indirectly concerned in or privy to an offence to which this section applies,
the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the
investigation or inquiry into, or the trial of, the offence, and the Magistrate
of the first class inquiring into or trying the offence, at any, stage of the
inquiry or trial, may tender a pardon to such person on condition of his making
a full and true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person concerned, whether
as principal or abettor, in the commission thereof.
(2) This section
applies to - (a) any offence triable exclusively by the Court of Session or by
the Court of a Special Judge appointed under the Criminal Law Amendment Act,
1952 (46 of 1952).
(b) any offence
punishable with imprisonment, which may extend to seven years or with a more
(3) Every Magistrate
who tenders a pardon under sub- section (1) shall record - (a) his reasons for
(b) whether the
tender was or was not accepted by the person to whom it was made, and shall, on
application made by the accused, furnish him with a copy of such record free of
(4) Every person
accepting a tender of pardon made under sub-section (1) - (a) shall be examined
as a witness in the court of the Magistrate taking cognizance of the offence
and in the subsequent trial, if any;
(b) shall, unless he
is already on bail, be detained in custody until the termination of the trial.
(5) Where a person
has accepted a tender of pardon made under sub-section (1) and has, been
examined under sub-section (4), the Magistrate taking cognizance of the offence
shall, without making any further inquiry in the case - (a) commit it for trial
- (i) to the Court of Session if the offence is triable exclusively by that
court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a court of
Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952),
if the offence is triable exclusively by that court;
(b) in any other
case, make over the case to the Chief Judicial Magistrate who shall try the
307 Cr.P.C. provides that at any time after commitment of a case but before
judgment is passed, the 9 Court to which the commitment is made may, with a
view to obtaining at the trial the evidence of any person supposed to have been
directly or indirectly concerned in, or privy to, any such offence, tender a
pardon on the same condition to such person.
308 provides for the trial of the approver who has accepted tender of pardon
but fails to comply with the condition of pardon. The said provision reads as
under:- "S. 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 willfully 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
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."
salutary principle of tendering a pardon to an accomplice is to unravel the
truth in a grave offence so that guilt of the other accused persons concerned
in commission of 11 crime could be brought home. It has been repeatedly said by
this Court that the object of Section 306 is to allow pardon in cases where
heinous offence is alleged to have been committed by several persons so that with
the aid of the evidence of the person granted pardon, the offence may be
brought home to the rest. Section 306 Cr.P.C. empowers the Chief Judicial
Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed
to have been directly or indirectly concerned in or privy to an offence to
which the section applies, at any stage of the investigation or inquiry or
trial of the offence on condition of his making a full and true disclosure of
the whole of the circumstances within his knowledge relative to the offence.
The Magistrate of the first class, under Section 306, is also empowered to
tender pardon to an accomplice at any stage of inquiry or trial but not at the
stage of investigation on condition of his making full and true disclosure of
the entire circumstances within his knowledge relative to the crime. Section
307 vests the court to which the commitment is made, with power to tender a
pardon to an accomplice. The expression, `on the same condition' occurring 12 in
Section 307, obviously refers to the condition indicated in sub-section (1) of
Section 306, namely, on the accused making a full and true disclosure of the
whole of the circumstances within his knowledge relative to the offence and to
every other person concerned, whether as principal or abettor, in the
commission thereof. An accomplice who has been granted pardon under Section 306
or 307 Cr.P.C. gets protection from prosecution. When he is called as a witness
for the prosecution, he must comply with the condition of making a full and
true disclosure of the whole of the circumstances within his knowledge
concerning the offence and to every other person concerned, whether as
principal or abettor, in the commission thereof and if he suppresses anything
material and essential within his knowledge concerning the commission of crime
or fails or refuses to comply with the condition on which the tender was made
and the Public Prosecutor gives his certificate under Section 308 Cr.P.C. to
that effect, the protection given to him is lifted.
A.J. Peiris v. State of Madras1, a 3 - Judge Bench of this Court stated that
the moment a pardon is tendered to the accused he must be presumed to have been
discharged, whereupon he ceases to be an accused and becomes a witness.
State v. Hiralal Girdharilal Kothari2, with reference to Sections 337 and 339
of the Code of Criminal Procedure, 1898 (now Sections 306, 307 and 308
Cr.P.C.), this Court stated that a pardon tendered under Section 337 is a
protection from prosecution; failure to comply with the condition on which the
pardon is tendered removes that protection.
State (Delhi Administration) v. Jagjit Singh3, this Court held as under:-
"8. ......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 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 cannot withdraw the pardon from the approver nor the
approver can 1 .AIR 1954 SC 616 2 AIR 1960 SC 360 3 1989 Supp (2) SCC 770 14
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
above statement of law in Jagjit Singh3 cannot be understood as laying down
that an accomplice who has been tendered pardon and called as a witness for
prosecution must be continued to be examined as a prosecution witness although
he has failed to comply with the condition on which the tender of pardon was
made and a Public Prosecutor certifies that he has not complied with the
condition on which the tender was made. As a matter of fact, in Jagjit Singh's3
case no certificate was given by the Public Prosecutor. The legal position that
flows from the provisions contained in Sections 306, 307 and 308 Cr.P.C. is
that once an accomplice is granted pardon, he stands discharged as an accused
and 15 becomes witness for the prosecution. As a necessary corollary, once the
pardon is withdrawn or forfeited on the certificate given by the Public
Prosecutor that such person has failed to comply with the condition on which
the tender was made, he is reverted to the position of an accused and liable to
be tried separately and the evidence given by him, if any, has to be ignored in
toto and does not remain legal evidence for consideration in the trial against
the co-accused, albeit such evidence may be used against him in the separate
trial where he gets an opportunity to show that he complied with the condition
of pardon. As a matter of fact, it is for this reason that a specific statement
was made by the counsel for the State of Maharashtra before us - a similar
statement was made before the Designated Court as well - that the evidence of
respondent no. 3 so far recorded shall not be used by the prosecution in the
114, illustration (b) of the Indian Evidence Act, 1872 (for short, `Evidence
Act') provides that the Court may presume that an accomplice is unworthy of
credit, unless he is corroborated in material particulars.
132 of the Evidence Act reads as follows:
not excused from answering on ground that answer will criminate - 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 proceeding, 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 proved against him in any criminal
proceeding, except a prosecution for giving false evidence by such
133 of the Evidence Act provides that an accomplice shall be a competent
witness against an accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an accomplice.
154 of the Evidence Act is as under:
Question by party to his own witness.- (1) The Court may, in its discretion,
permit the person who calls a witness to put any question to him which might be
put in cross examination by the adverse party.
2. Nothing in this
section shall disentitle the person so permitted under sub-section (1), to rely
on any part of the evidence of such witness."
22. Section 315 of
Cr.P.C. makes an accused person a competent witness for the defence and he may
voluntarily give evidence on oath in disproof of the charges made against him
or any person charged together with him at the same trial.
The said provision
reads as follows:
person to be competent witness - (1) Any person accused of an offence before a
Criminal Court shall be a competent witness for the defence and may give
evidence on oath in disproof of the charges made against him or any person
charged together with him at the same trial:
Provided that- (a) he
shall not be called as a witness except on his own request in writing;
(b) his failure to
give evidence shall not be made the subject of any comment by any of the
parties or the court or give rise to any presumption against himself or any
person charged together with him at the same trial.
(2) Any person
against whom proceedings are instituted in any Criminal Court under section 98,
or section 107, or section 108, or section 109, or section 110, or under
Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as
a witness in such proceedings:
18 Provided that in
proceedings under section 108, section 109 or section 110, the failure of such
person to give evidence shall not be made the subject or any comment by any of
the parties or the court or give rise to any presumption against him or any
other person proceeded against together with him at the same inquiry."
In other words,
Section 315 clearly lays down that an accused cannot be compelled to give
evidence except on his own request in writing.
20(3) of the Constitution protects an accused from being called or compelled to
be witness against himself.
have referred to the aforesaid provisions of the Evidence Act, Cr.P.C. and
Constitution to indicate that none of these provisions militates against the
proposition that a pardon granted to an accomplice under Section 306 or 307
Cr.P.C. protects him from prosecution and he becomes witness for prosecution
but on forfeiture of such pardon, he is relegated to the position of an accused
and his evidence is rendered useless for the purposes of the trial of the co-
accused. He cannot be compelled to be a witness. There is no question of such
person being further examined for the prosecution and, therefore, no occasion
arises for the defence to cross examine 19 him. The Designated Court seriously
erred in treating the respondent no. 3 (Riyaz Ahmed Siddique) hostile witness;
it failed to consider that the pardon granted and accepted by him was
conditional pardon inasmuch as it was on the condition of his making a true and
full disclosure of all the facts concerning the commission of crime and once
the pardon granted to him stood forfeited, on the certificate issued by the
Special Public Prosecutor, he was relegated to the position of an accused and
did not remain a witness. In the circumstances, there was no justification to
permit the defence to cross examine the respondent no. 3 and to that extent the
impugned order cannot be sustained.
appeal is allowed as indicated above.
5 , 2010.