K RAM MOHAN REDDY Vs. STATE OF AP

JUDGEMENT

(1.) This petition is filed by the 9th accused who later became approver and gave evidence in the lower court as P.W.1 in S.C.No.178 of 2006 on the file of Principal Sessions Judge, Anantpur relating to offences punishable under Sections 147, 148, 201, 212, 302, 307, 324, 326, 327 IPC, Sections 25 (1B)(a) and 27 of the Arms Act and Sections 3, 4, 5 of the Explosive Substances Act. The petitioner is in custody since 12.2.2005 when he was arrested in this crime. The case pertains to murder of Paritala Ravindra at Anantapur. After the petitioner chose to become approver, the Sessions Court tendered pardon to him under Section 307 Cr.P.C subject to conditions.

(2.) The petitioner is seeking declaration that his detention is illegal and violation of personal liberty, in this petition. There is no dispute that S.C.No.178 of 2006 is still pending trial in the lower court. Prosecution evidence in that case was completed and the accused were examined under Section 313 Cr.P.C. There is no dispute that after examination of the accused, the prosecution filed additional list of witnesses who are four in number and their evidence is also over and the matter is now coming up before the lower court for further examination of investigating officer by recalling him , because one witness out of the additional list of witnesses turned hostile to the prosecution. It is contended that the petitioner as P.W.1 made 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 and that therefore, he has complied with condition relating to grant of pardon to him and that as consequence thereof the petitioner is entitled to be released from custody. According to the petitioner, he is in illegal custody of the State and it violates Article 21 of the Constitution of India. On the other hand, Standing Counsel for C.B.I attended that the petitioner is not entitled for release from custody until completion of trial in the lower court and until the Public Prosecutor certifies that the accused made full and true disclosure as contemplated under Section 306 (1) Cr.P.C. There is no provision in law which prescribes the Public Prosecutors certificate about true and full disclosure by the approver, as a condition precedent for release of the accused turned approver from custody. The accused is not at the mercy of the Public Prosecutor for his release when he turned as approver. The so-called certification by the Public Prosecutor is contemplated under Section 308(1) Cr.P.C., for trial of the approver for offence in respect of which pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter and also for the offence of giving false evidence. Section 308(1) Cr.P.C reads as follows: Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence.

(3.) On reading of the above provision, it is clear that it contemplates certification by the Public Prosecutor in a negative fashion. In case he is of the opinion that the approver has either by wilfully concealing any thing essential or by giving false evidence not complied with the condition on which tender of pardon was made. The certification contemplated under Section 308 Cr.P.C is not a positive certificate for release of the accused, but such certification is in the negative fashion for the purpose of proceeding against the approver in trial for the main offence and also for other subsidiary offences including for giving false evidence in that matter. Therefore, the trial court need not wait for certification of the Public Prosecutor for the purpose of releasing the approver from custody. Further, certification by the Public Prosecutor as contemplated under Section 308 Cr.P.C., need not wait until completion of trial. If the Public Prosecutor is of the opinion and he is able to come such opinion that the approver wilfully concealed some thing essential or gave false evidence, the Public Prosecutor is at liberty to give the said certificate at any stage of the trial subsequent to examining the approver as prosecution witness during trial before the trial court. Of course, it is left to discretion of the Public Prosecutor about stage and timing of giving such certificate. But, certainly it is not a condition precedent for release of the accused who turned as approver.