MD MUKIM Vs. STATE

JUDGEMENT

(1.) PETITIONER along with others was arrainged as an accused in G. R. Case No. 129 of 1988 pending in the Court of Subdivisional Judicial Magistrate, Sundargarh, on the allegation of having committed offences punishable Under Sections 467, 468, 471, 473, 420 and 120 -B of the Indian Penal Coda* 1860 in short, 'IPC', and Under Sections 52. 53 and 67 of the Indian Post Office Act, 1898. On 6 -8 -1988 pardon was granted to him Under Section 306 of the Code of Criminal Procedure, 1977 (in short, the 'Code' ). Prayer made by the petitioner to be made an approver was accepted by the learned Subdivisional Judicial Magistrate (in short, 'SDJM') on 6 -8 -1988 on condition that he would make a full and true disclosure of whole of the circumstances within his knowledge relative to the offence. He was examined as required Under Section 306(4) of the Code. His statement under - Section 164 of the Code was recorded or, 13 -6 -1988 during investigation. On 31 -3 -1989., when the case was transferred to the Court of Chief Judicial Magistrate, Sundargarh (in short, 'CJM') for trial the petitioner took the stand that he was not interested to be an approver, on the ground that he was forced to accept pardon. The learned CJM directed cancellation of the pardon tendered to him and to treat him as an accused in the case. This order dated 31 -3 -1989 and the order dated 10 -4 -1989 grunting bail to him as an accused were assailed before the learned Sessions Judge, Sundargarh in Criminal Revision No. 37 of the 1989. The learned Sessions Judge held that the orders passed by the learned CJM were not in accordance with law.

(2.) LEARNED counsel for petitioner submitted that even if it is conceded for sake of argument that the learned Sessions Judge was within his jurisdiction to hold that pardon granted cannot be withdrawn, his direction relating to bail is unsustainable. Conclusions relating to pardon are also assailed. The learned counsel for State on the other hand supported the order,

(3.) 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 an approver who was granted pardon has to comply with the condition of making full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to very other person concerned whether as principal or abettor, in commission thereof. Because of this mandate neither can the State withdraw pardon from the approver, nor can the approver cast away the pardon granted to him till he is examined as a witness by the prosecution both in 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 he has to be examined as a witness in the trial Court. It is only when the public prosecutor certifies that the approver has not complied with the condition on which the tender was made by wilfully concealing anything essential or by giving false evidence he may be tried under v. 308 of the Code not only for the offence in respect of which pardon was granted but also in respect of other offences. This position has been succinctly stated by the Apex Court in the case of state (delhi administration) v. jagjit singh : air 1989 sc 598, The moment pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be accused and became a witness. (See A. J. Reiria v. State of Madras: AIR 1954 SC 616). The order of the learned CJM was indefensible and has been rightly nullified by the learned Sessions Judge.