NOOR TAKI Vs. STATE

JUDGEMENT

(1.) We are called upon to answer a question referred to us by the Division Bench of this Court by its order dt. Dec. 5, 1985, as to whether an approver can be detained for indefinite period even when principal accused in the case has been released on bail.

(2.) Petitioner had filed an application under S.439, Cr.P.C. before the Single Bench of this Court and on Aug. 28, 1985, interim bail was granted to him under S.482, Cr.P.C., since the petitioner's only brother had expired and there was none in the family to perform the rituals. The Court while granting bail under S.482, Cr.P.C. said in the order that application under S.439, Cr.P.C., does not lie in a case where provisions of S.306(4)(b), Cr.P.C. are attracted. However, jurisdiction could be invoked under S.482, Cr.P.C. Accused was directed to surrender on Oct. 28, 1985. On this day the application was pressed on merits and Hon'ble Mehta J. in his order dt. Oct. 28, 1985, while again granting interim bail referred the case to a Division Bench as there were two views of this Court; one in the case of Ayodhya Singh v. State of Rajasthan, 1972 WLN 436 : (1973 Cri LJ 768) and another in Dev Kishan v. State of Rajasthan, 1983 Rajasthan LR 625 : (1984 Cri LJ 1142). Thereafter, the matter went before the Division Bench and the Division Bench further referred the case before this larger bench as 3 different Judges had taken different views while interpreting the provisions about granting bail to the approver.

(3.) Mr. M.I. Khan, Public Prosecutor appearing on behalf of the State, opposed the bail application on the ground that an approver can never be enlarged on bail if he was not on bail at the time when pardon was granted to him. He referred to the provisions of S.306(4), which run as under : Section 306(4). Every person accepting a tender of pardon made under Sub-Sec. (1) - (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial." He submits that Cl. (b) of Sub-Sec. (4) of S.306 is mandatory and accused has to be detained in custody until the termination of the trial if he was not already on bail. He submits that in Chap. XXXIII of the Cr.P.C., where the provisions as to bail and bail bonds have been incorporated under Ss.437 and 439. Cr.P.C., bail can only be granted to a person accused of an offence. It is submitted that while enacting the provisions of S.439, Cr.P.C. the Legislature used different phraseologies in this Section itself. For grant of bail the words used are, 'that any person accused of an offence and in custody be released on bail' but in Sub-S.(2) for cancellation the words used are 'any person who has been released on bail under this Chapter, can be arrested and committed into custody', thus are approver, who is a witness and not an accused cannot be granted bail under the provisions of S.439, Cr.P.C. but if he is already an bail, his bail can be cancelled under Sub-S.(2). It is submitted by Mr. Khan that apart from S.439, Cr.P.C. there is no other provision in the Cr.P.C. which empowers the Court to grant bail to any person detained. It is submitted that S.482, Cr.P.C. can also not be pressed into service because Legislature has given a clear mandate in form of S.306(4)(b) that the approver shall be detained in custody until the termination of trial and in this view of the matter detention of the approver in jail cannot be brought under the purview of inherent powers under S.482, Cr.P.C. and such case would not be covered to prevent an abuse of the process of the Court or otherwise to secure the ends of justice. It is submitted that when the Legislature enacted S.306(4)(b), it was conscious of the fact that there is a public policy behind it. It is submitted that firstly, there is a safety of the approver himself because when he makes the disclosure of the facts and involves the other accused persons, if he is released on bail, then he can either be killed or an attempt can be made on his life or he can be threatened so as to change his statements. Secondly, if he is released on bail, there is every chance of his becoming hastile or not being available to the Court for evidence. It is also submitted that there is also expediency concerning the law and order, Learned Public Prosecutor has relied on A.L. Mehra v. State, AIR 1958 P&H 72 : (1958 Cri LJ 413), Bhawani Singh v. State, AIR 1956 Bhopal 4 : (1956 Cri LJ 44 ), Karuppa Servai v. Kundaru alias Muniandi, AIR 1952 Mad 833 : (1953 Cri LJ 45), Pajerla Krishna Reddi, AIR 1952 Mad 839 : (1953 Cri LJ 50), Haji Ali Mahomed v. Emperor, AIR 1932 Sind 40 : (1932-33 Cri LJ 906), In re Dagdoo Bapu, AIR 1922 Bom 177(1) : (1921-22 Cri LJ 620) and Dev Kishan's case (1984 Cri LJ 1142) (Raj) (supra).