ANAND Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This is an application filed under sections 397 and 401, Cr. P. C. to set aside the order in M. P. No. 1400 of 1985 on the file of Chief Metropolitan Magistrate, Egmore, Madras.

(2.) The Inspector of Police, T. P. Chatram, Madras laid a report under section 173, Cr. P. c., before the Chief Metropolitan Magistrate, Madras against the petitioner Anand, who had been subsequently taken as approver and six others for the alleged offence under section 120 (B), I.P.C., read with section 2 of Tamil Nadu Public Property (Prevention of Destruction and Loss) Act, 1982. Before commencement of the trial, the petitioner herein filed Cr. M. P. No. 400 of 1985 stating that as a result of coercion he gave the statement under section 164, Cr. P. C. before the Magistrate and he was taken as an approver. He also stated that his conscience was not permitting him to depose before the court falsely by sticking on to the version which he made under section 164, Cr.P.C. and therefore a fresh statement under section 164, Cr.P.C. be recorded from him so that he could be treated as an accused and tried along with the rest of the accused. The learned Chief Metropolitan Magistrate, Madras dismissed the application giving rise to this present petition.

(3.) The learned counsel appearing for the petitioner would contend that the relationship between the person who tendered pardon on condition is that of contractual relationship and before the performance of the contractual promise it will be open for the person who accepted the pardon to resile and refuse to accept the pardon. He would amplify his argument by stating that though the petition filed before the court did not specifically state that the petitioner is praying for the cancellation of the pardon tendered to him, yet, it would by way of implication mean, that the petitioner is praying for the cancellation of the pardon tendered to him. A persual of the phraseology employed in para 4 of the petition filed in the court below would reveal the mind of the petitioner that he should be treated as an accused instead of being an approver. He stated therein, his statement may be recorded afresh so that he could be treated as accused and tried along with the rest of the accused. As such, it is crystal clear that the petitioner wanted to resile from his earlier 164 statement and be arrayed as an accused in the case, after the cancellation of the pardon tendered to him. The learned counsel in support of his contention would seek to place reliance on the decision in In re; N. Kasinathan and anather1, wherein the learned Judge held as follows: The relationship between the person who tendered the pardon and the person who accepted the pardon on condition is that of contractual relationship. Before the performance of the contractual promise, it will be open for the person who accepted the pardon to resile and refuse to accept the pardon. Before the petitioners were put in the witness box to give evidence which is the stage for them to make their mind to give evidence, they could refuse to give evidence and take the position of the accused. The decision referred to above by the counsel for the petitioner is squarely applicable to the facts of the present case. The learned Public Prosecutor, without repelling this contention, however, would argue that the entire case of the prosecution rests on the evidence of the petitioner and if the evidence of the approver goes, the case of the prosecution has to be thrown out lock stock and barrel and in this view of the matter he would say that quashing of the order at this stage would cause serious prejudice to the case of the prosecution. In the face of the legal contention raised by the learned counsel for the petitioner, the submission of the learned Public Prosecutor that the prosecution case would suffer a lot cannot at all be countenanced. Affixing the seal of approval to the contention of the learned counsel for the petitioner I hold that once the approver wants to cancel the tender of pardon, then the contractual 1. 1969 LW 138. relationship between the person who tendered the pardon and the person who accepted the pardon on condition goes out and the approver has to be necessarily shown as an accused. In this view of matter, the petition deserves to be allowed.