State
(Delhi Admn.) Vs. Jagjit Singh [1988] INSC
368 (15 December 1988)
Ray,
B.C. (J) 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.
HEAD NOTE:
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
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]
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.
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