ORDER
This application for bail filed under Section 439 of Criminal Procedure Code is by the ninth accused in Crime No. 766 of 2012 of Pudukkad Police Station, who turned as approver and who was granted pardon by the court concerned.
2. Petitioner along with other accused are alleged to have committed offences punishable under Sections 120B, 143, 147, 148, 341, 324, 326, 302 and 212 read with Section 149 I.P.C and also Section 27 of the Arms Act.
3. The incident which gave rise to the case occurred on 6.6.2012 at about 11 p.m The petitioner along with six other persons armed with deadly weapons attacked one Kamsheer and Gopi causing serious injuries to them and they succumbed to their injuries. Petitioner claims to be innocent and that he has been falsely implicated. It is pointed out that his statement under Section 306(4) Cr.P.C has been recorded as he turned approver and his pardon was accepted. His plea for bail was rejected by the Sessions Court. It is also pointed out that all other accused have been released on bail and he has been in custody from 16.6.2012 It is pointed out that the Sessions court, while dismissing the application for bail ought to have considered the principle laid down in the decision reported in Shammi Firoz v. National Investigation Agency(2010 (4) KHC 319). It is pointed out that the trial is not likely to take place in the near future and it is quite inappropriate to keep the petitioner in custody till the trial is over. He therefore prays for grant of bail.
4. Learned Public Prosecutor very vehemently opposed the petition. It was pointed out by her that the petitioner, having turned an approver and granted pardon by the JFCM court, cannot be released on bail in view of Section 306(4) Cr.P.C That is a mandatory provision and that being one of the conditions under which pardon was granted cannot be waived by any court. Even the inherent power available to this court under Section 482 Cr.P.C cannot be invoked to get over the interdiction imposed by Section 306(4) Cr.P.C, which is intended to protect an accused, who had turned as approver. Learned Public Prosecutor distinguishes the decision relied on by the learned counsel for the petitioner by pointing out that that was a case where pardon was granted under Section 307 Cr.P.C by the Special Court which is infact Sessions Court and in such cases, the prohibition under Section 306(4) Cr.P.C may not strictly apply. Under such circumstances invoking the power under Section 482 Cr.P.C that this court had granted bail in the decision relied on by the learned counsel for the petitioner. It is therefore contended that the bail application is only to be dismissed.
5. It is not disputed before this court that the petitioner was the ninth accused in Crime No. 766 of 2012. The offences alleged against the petitioner and other accused are indeed grave and they were accused of having committed double murder. It would appear from the records and the arguments advanced by both counsel for the petitioner as well as the learned Public Prosecutor that the petitioner has turned as approver and his statement has been recorded under Section 306(4) Cr.P.C
6. Section 306 reads as follows:
“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;
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record-
(a) his reasons for so doing;
(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 cost.
(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 case himself.”
7. The scope, purpose and reason for the provision has been discussed in a number of decisions both by the Apex Court as well as various High Courts including this court. This Section empowers Chief Judicial Magistrate, or Metropolitan Magistrate at any stage of the investigation, enquiry into or trial of the offence to tender pardon to such person on condition of his making full and true disclosure within his knowledge relating to the offence and to every other person concerned. In the case of Magistrate of the First Class, the power can be exercised only at the time of enquiry or on the commencement of trial and not at the stage of investigation. The necessity of tendering pardon to an accomplice in certain circumstances has been considered in some cases. It lets an accomplice to escape from punishment and his evidence is looked upon with suspicion.
8. This provision is a clear exception to the rule that no inducement shall be offered to a person to disclose what he knows. It may so happen that in grave offences, the investigating agency may not be able to get convincing and clinching evidence against the accused persons. In such a case with a view to see grave offences did not go unpunished, the legislature in its wisdom has introduced this provision carving out an exception, but confining the scope of the provision within the ambit of the provision. The principle appears to be to prevent escape of offenders from punishment in grave offences for lack of evidence by grant of pardon to an accomplice.
9. It is significant to notice that the provision does not say that the person to whom pardon is tendered under this provision and who turned an approver need necessarily be arrayed as an accused. All that it stipulates is that the person concerned should have been directly or indirectly concerned in or privy to an offence to which the provision applies. It could in fact be treated as a contract between State and the person concerned who is tendered pardon that in view of the person concerned making a full and complete disclosure regarding the whole of the circumstances within his knowledge which led to the offence, he will not be prosecuted for the offence alleged against him. Section 308 of the Cr.P.C takes care of the situation in regard to a person who has accepted a tender of pardon, who thereafter either conceals anything essential or gives false evidence and does not comply with the conditions of which pardon was tendered to him. In such a case, there is a breach of contract on the part of the person who is tendered pardon and thereafter he is to be tried separately for the offence alleged against him.
10. While Section 306 Cr.P.C deals with a case of tendering of pardon by the chief Judicial Magistrate or Metropolitan Magistrate, or Judicial Magistrate of First Class, Section 307 Cr.P.C deals with a situation where pardon is tendered to a person after his case is committed, but before the judgment is pronounced. That necessarily means the provision applies to Sessions trial.
11. In the decision reported in Shammi Firoz's case (supra), on which heavy reliance was placed by the learned counsel for the petitioner, this court considered the scope, and ambit of Section 307 Cr.P.C since the pardon in the said case was tendered by the Special Court acting as the Sessions Court. This court observed in the said decision that once pardon is tendered to an accused, he ceases to be an accused and therefore Section 439 Cr.P.C does not apply and this court under its inherent power under Section 482 Cr.P.C can grant bail. This court has also occasion to observe that having tendered pardon under Section 307 Cr.P.C, the prohibition under Section 306(4) Cr.P.C does not apply.
12. There is a clear distinction between the power that is exercised under Sections 306 and 307 Cr.P.C While power conferred under Section 306 Cr.P.C is exercised before the committal of the case, Section 307 Cr.P.C comes into play only after the committal is made to a court for trial of the offence. The consequences of the person who is tendered pardon in not complying with the condition of pardon has already been referred to.
13. In the case on hand, it is conceded that the petitioner was tendered pardon under Section 306 Cr.P.C by the court which took cognizance of the offence and not by the court to which the case is committed.
14. The person who turns approver and who is granted pardon subjects himself to certain conditions, one of which is contained in Section 306(4)(b) of Cr.P.C That provision stipulates that unless the person who was tendered pardon and who was turned an approver is on bail, he shall be detained in custody till the termination of the trial. It seems to be a mandatory provision. Going by the provision, an approver who has been granted pardon has to be detained till the termination of trial and cannot be granted bail before that. The object, purpose and intention behind the provision is not to punish him for having agreed to give evidence for the State, but to protect him from the wrath of the co-accused since he has chosen to expose their deeds and has thrown himself open to attack by the co-accused.
15. It is well settled that when there is a specific provision regarding a matter, the same has to be applied. When there is an interdiction by Section 306(4) of Cr.P.C against releasing the person who is tendered pardon and who has turned an approver, except when he is already on bail, takes away even the inherent power conferred under Section 482 Cr.P.C to grant bail to the person concerned. The use of the word ‘shall’ in the provision shows that it is mandatory and the legislature has introduced a statutory interdiction against releasing the said person even invoking the inherent power.
16. It may be that there may be delay in filing the charge sheet and the trial of the case. But that is of no consequence because the Section is intended for the protection of the accused or the person who has been tendered pardon.
17. In the decision reported in S.C Bahri v. State of Bihar (AIR 1994 SC 2420), the question as to the validity of the evidence given by a person, who has been tendered pardon and who is subsequently released on bail by the High Court was considered. Though it was held that even when he is released on bail by the High Court, the evidence tendered by him does not become tainted or unacceptable, it was also held that Section 306 Cr.P.C is a clear interdiction on granting bail. The relevant portion reads as follows:
“…..It is no doubt true that clause (b) of S. 306(4) directs that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. The dominant object of requiring an approver to be detained in custody until the direction of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime to whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from the custody. It is for these reasons that clause (b) of S. 306(4) casts a duty on the Court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior Court, but such a release would not have any effect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar.”
18. Learned counsel appearing for the petitioner then contended that in the decision referred to above, the scope and ambit of Article 21 of the Constitution has not been considered and that Article guarantees the personal liberty of the person.
19. Obviously, the legislature while enacting Section 306(4) Cr.P.C must have been aware of the right guaranteed under the Constitution, namely, Article 21, and even thereafter chose to impose the condition against releasing the person, who is tendered pardon from custody.
20. It therefore follows that even though the Sessions Court has not referred to these aspects, the Sessions court was justified in refusing to grant bail to the petitioner.
21. In the light of the clear interdiction and prohibition under Section 306(4) Cr.P.C, it is not possible to entertain the contention that once tendered pardon, the person ceases to be an accused and thereafter under Section 482 Cr.P.C, bail can be granted cannot be countenanced. At least in the case covered by Section 306 Cr.P.C, where pardon is tendered by either the CJM or Metropolitan Magistrate or Judicial Magistrate of the First Class in the circumstances already made mention of, the interdiction under Section 306(4) Cr.P.C clearly applies and the court is precluded from releasing the petitioner from custody except possibly by Apex Court exercising its plenary powers.
This application is without merits and accordingly it is dismissed.