MOHD SHAFI Vs. STATE

JUDGEMENT

(1.) MOHAMMAD Shafi, the petitioner herein is an approver in a murder case pending trial in the court of Sessions Judge, Baramulla. After his statement was recorded, wherein he has admittedly supported the prosecution whole hog, he made an application for bail, firstly because his detention in custody had become unnecessary, and secondly, because he was fairly young and his continued detention in custody was affecting his health adversely. He also produced a medical certificate to support his aforesaid pleas. His prayer was not opposed by the prosecution, but was opposed by the accused. The learned Sessions Judge, being of the opinion that Sub -section (3) of Section 337 Cr. Pr. Code created an absolute bar against releasing an approver on bail till the conclusion of the trial rejected his petition and declined to grant him bail. The petitioner has now moved this court with a fresh petition, by invoking it power u/s 498 Cr. Pr. Code.

(2.) SUB -section (3) no doubt lays down in clear and unambiguous terms that an accused who has been tendered pardon shall, unless he is already on bail, be detained in custody until the termination of the trial The provisions of this Sub -section on its plain language are mandatory in character and have no direction either in the trial court, or in the High Court, or the court of Sessions exercising its powers u/s 498. to release an approver on bail till the conclusion of the trial. The reasons for the raison detre of sub -section (3) are not far to seek. More often than not an accomplice is given pardon where the prosecution fails to secure the ocular testimony of any other independent witness support its case. There is a express agreement with him that in case he would support the prosecution by making a full and true disclosure of the whole circumstances within his knowledge relating not only to the commission of the offence, but also to the part played by the other accused persons therein he would not be punished. As a measure of abundant caution, and with a view to find out as to in what manner and to what extent he would support the prosecution, his statement u/s 164 Cr. Pr. Code is also recorded during the course of investigation. His evidence, thus, being of considerable importance for the prosecution to prove its case against the other accused, he in terms of Sub -section (3) is ordained to be kept in custody till the conclusion of the trial. This is considered necessary firstly, secondly, to obviate any chance of his being tempered with and persuaded to fall back on his promise, for in the event of his being released on bail before he has made the statement pursuant to the pardon tendered to him, the other accused persons or their cohorts are likely to destroy his evidence by either doing away with his life, or by otherwise persuading or pressuring him to resile from his pledge of making a full and true disclosure of the whole circumstances with his knowledge. Clearly therefore, the object behind enacting sub -section (3) is It is on the other hand to preserve his evidence untampere not to detain an approver in custody as a measure of punishment. d with Once an approver has made a statement as promised and thereby fulfilled the condition precedent to the grant of pardon in his favour, the object of his detention thereafter is not only unnecessary, but is also immoral, for after he has redeemed the pledge, he earns a right of acquittal. His further detention under these circumstances virtually tentamounts to inflicting punishment on him, which under law he surely does not deserve. Looking at this from other angle: essente ratione legts cessente ipsa lex, that is, when the reason for law cease the law itself ceases.

(3.) BUT , how to undo this injustice Subsection (3), as already observed, does not permit the court to release an approver on bail under any circumstances, until the trial has come to an end. Nor can recourse be had to Sec. 498, for Sec 498 is general provision which must yield to the special provision contained in Sub -section (3), Generalia specialibus non darogant. Even so, the apprehended impasse is not there Sec. 561 -A which saves the inherent power of the High Court says :