NOORTAKI Vs. STATE OF RAJASTHAN

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 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 and another in Dev Kishan v. State of Rajasthan : 1983 Rajasthan LR 625 . 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).-