Approver With Tendered Pardon Can Be Relegated To Status Of Accused Only U/s. 308(1) CrPC: Bombay HC

The Bombay High Court, Nagpur Bench, disposed of a Criminal Writ Petition challenging the order of the Sessions Court, wherein the rejection of the Vakalatnama filed by Advocate More for the Respondent was dismissed.

The Court observed that no provision in the Criminal Procedure Code (CrPC) allows a person who has accepted a pardon to apply for its withdrawal and revert to their previous status as an accused. The Court noted that without following the procedure under Section 308(1), the approver cannot be relegated to the position of an accused.

“In terms of sub section (1) of Section 308 in order to relegate the approver to the position of the accused the public prosecutor must certify that in his opinion the approver has, either by wilfully concealing anything essential or by giving false evidence, has not complied with the conditions on which the tender was made...It is therefore apparent that there is no provision under the Cr.P.C. which empowers or enables the person on acceptance of pardon on terms and conditions to make an application of this kind and to pray for withdrawal of that application made to become an approver. It is to be noted that on acceptance of tender of a pardon the accused gets discharged from the case. The said person then becomes the witness for the prosecution. The said person therefore without following the procedure under Section 308 (1) of the Cr.P.C. cannot be relegated to the position of the accused”, Justice G.A. Sanap held.

Additional Public Prosecutor Mayuri Deshmukh appeared for the Petitioner/ State and Advocate S.S. Das appeared for the Respondent.

A Criminal Writ Petition was filed by the State challenging the order of the Additional Sessions Judge, wherein the application by the Special Prosecutor was rejected. The application sought to reject the Vakalatnama filed by Advocate More for the Respondent and shift the Respondent to Central Jail. The Respondent was co-accused for the offences punishable under Sections 302, 364-A, 363, 201 & 120-B of the Indian Penal Code (IPC) for the kidnapping of a minor girl who was taken to a secluded place, administered an intoxicant and strangulated. The accused individuals burnt the dead body and destroyed the evidence. During the Sessions Court proceedings, the Respondent applied to become an approver. However, while recording prosecution witnesses' evidence, the approver filed a pursis claiming she did not commit the crime. She mentioned that she had applied to become an approver due to ignorance of the law and on her advocate's advice. She sought to withdraw her application to become an approver.

The Court noted that the main issue to ascertain was 'whether the approver could be allowed not to press the application made to become an approver before the evidence of the approver was recorded and the procedure provided under Section 308 of the Cr.P.C. was followed'.

The Court observed, “The main object of tender of a pardon is to obtain at the trial the evidence of any person supposed to have been directly or indirectly concerned or privy to any offence. The pardon is always tendered subject to the condition of his or her making full and true disclosure of the whole circumstances within his knowledge related to the offence and to every other person concerned, whether as a principal or abettor in the commission of crime. Once the pardon is tendered on such conditions and the conditions are accepted by the accused then the said accused under law gets discharged from the case. The accused then becomes approver/witness for the prosecution”.

The Court asserted that Section 308 of the CrPC addresses the trial of a person who fails to comply with the conditions of the pardon. The Court emphasised that strict compliance with Section 308(1) is necessary for the approver to revert to their original position as an accused. This section outlines the mechanism for this transition and requires certification from the public prosecutor that the approver has willfully concealed essential information or provided false evidence. The Court observed that only after such certification can the pardon given to the approver be withdrawn, allowing the person to be tried for the offence for which the pardon was granted and any related offences, including providing false evidence.

Furthermore, the Court noted that the trial of a person whose pardon is withdrawn must be conducted separately from the other accused individuals. The Court observed that if the approver fails to comply with the conditions of the pardon, the consequences provided by the law must be considered. The approver cannot be tried with the remaining accused and must undergo a separate trial. The Court asserted that the main objective is to obtain a firsthand account of the incident through the testimony of the approver, who is typically a guilty partner with the co-accused.

Additionally, the Court held that the respondent or approver did not testify as a witness before applying to withdraw their application to become an approver. Therefore, the judge failed to consider the provisions of the law properly.

“In my view, in order to relegate the approver to the position of an accused the stage and the conditions as contemplated under Section 308 (1) of the Cr.P.C. must be established in a given case. In this case, respondent/ approver did not step into the witness box. Before stepping into the witness box she made this application to withdraw her application to become an approver. Learned Judge in this case has completely missed very essence and substance of the provisions of law”, the Court noted.

Accordingly, the Court disposed of the Petition.

Cause Title: State of Maharashtra v Madhuri Badrinarayan Gote

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