1990 PLP 1394 (MLD)

7. It has been urged that the statement recorded under 5.164, Criminal P.C., 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 alongwith other accused in the said case. This contention is not tenable inasmuch 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 inasmuch as subsection (4) of 5.306 Criminal P.C. 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.

8. 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 approval 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 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 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 S.308 Criminal P.C. 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 Mad 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 witness before the trial Court. It has been observed even in the said case that the provisions of S.337(2), old Code of Cr.P. 1898 (V of 1898) provide that the approver who has been tendered pardon must be examined both in the Committing Court and the Court of Session. It has been held that (at p.277): "The obligation to make a full and true disclosure would arise whenever the approver is lawful called upon to give evidence touching the matter, it may be in the Committing Court, or, it may be in the 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 have 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 of statutory interpretation can it be said that section 339(1) is dependent on or connected with section 337(2) in the sense that the approver must be examined both in the Committing Court and the Sessions Court before 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:'

9. This decision has been considered in Emperor v. Shahdino Dhaniparto AIR 1940 Sindh 114 wherein it has been held that:‑‑ "When an accused after accepting pardon denies all knowledge of fact before the Committing Magistrate and the case is committed to Session 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."

10. 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.

11. 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 cast: wherein the facts are almost similar, The appellant approver in such circumstances should not be examined by the prosecution as a witness inasmuch as his evidence may be used in the other criminal cases wherein he figures as an accused. This is against the protection given by Art. 20(3) of the Constitution. 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 inasmuch as once an accused is granted pardon under section 306, Criminal P.C. 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 knowledge relating to the offence and to every other concerned, whether as principal w 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 at p. 620), 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."

12. We have already held hereinbefore that subsection (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, 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 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 answer.

13. 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 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, 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 to the decision of this Court in Laxmipat Choraria v. State of Maharashtra, (1.968) 2 SCR 624: (AIR 1968 SC 938 at p. 942) 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 it be proved against him in am criminal proceedings except a prosecution for giving false evidence by such answer."

14. So section 132 of the Evidence Act sufficiently protects him since his testimony does not go against him.

15. 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. Z.S./247/F.C Appeal allowed.