TULA RAM Vs. THE STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This petition by Tula Ram is one under Ss. 439 and 482 of the Code of Criminal Procedure and also under Article 227 of the Constitution of India. A case under Sec. 304, Indian Penal Code, read with Sec. 77 of the Punjab Excise Act, was registered against the Petitioner and 13 others. The Sub -Divisional Magistrate, Paonta Sahib, committed these accused to the Court of Sessions vide his order dated March 20, 1973. Sometimes before the committal order, the District Magistrate, Sirmur, tendered pardon to the Petitioners. As such he was made the approver and was to appear as witness against the remaining accused. The statement of the approver -Petitioner has been recorded on several dates and is finally concluded on October 17, 1973. According to the averments made in the petition, the approver has made a full and true disclosure of the whole of the circumstances within his knowledge. He is in judicial custody and is ordered to be detained in custody until the termination of the trial.

(2.) The averments of the Petitioner are that in all 135 witnesses are to be examined by the prosecution and that only 16 have so far been examined. The conclusion of the trial is likely to take pretty long and a possibility of delay cannot be ruled out. The Petitioner has also submitted that he is sick and is likely to suffer more in case he is detained in custody. It is stated on his behalf that a different treatment has been given to a person already on bail and to whom pardon is granted, as compared to a person who is not on bail and to whom pardon is granted. This, according to Petitioner, amounts to discrimination under Article 14 of the Constitution. There is no likelihood for the Petitioner to abscond or to tamper with the other prosecution witnesses. On these grounds it is prayed that Sec. 306(4)(b) of the Code of Criminal Procedure be struck down as ultra vires the provisions of the Constitution and that the Petitioner be released on bail.

(3.) The learned Counsel submitted that a case of discrimination under Article 14 is made out. He has founded his argument by saying that a person who is granted bail and who thereafter becomes an approver has been distinguished from a person who has not been granted bail or who has not applied for bail and is subsequently made an approver. In my opinion, these are two different categories and hardly a case of discrimination is made out. If a person is granted bail or refused bail, that has been done on merit. A person having received bail cannot be considered on the same footing as a person to whom bail is refused. In Bhawani Singh v/s. The State (supra), the vires of Sec. 337(3) of the Code of Criminal Procedure, 1898 was considered with reference to Constitutional provisions. It was held that it was within the powers of the legislature to lay down which persons can be released on bail and to whom bail cannot be granted. As the rule contained in Sec. 337(3) applies to all the approvers, it cannot be said that it makes a differentiation between a case where bail has been granted and then the person is made an approver and another case where bail is refused and thereafter the man turns to be an approver. Therefore, Sec. 306(4)(b) cannot be struck down as being contrary to any provision of the Constitution.