Farooq Ahmad Itoo vs State of J&K

Mr. Mohammad Yaqoob Mir, J. - Prayer for grant of bail has been rejected by the trial court. Basically in connection with case FIR

No.24/2013 under Section 420, 406, 201, 120-B RPC read with Section 5(1)(d) and 5(2) of J&K Prevention of Corruption Act, trial against the

accused persons is in progress. The petitioner, who too was an accused, has been granted pardon under Section 337 of the Code of Criminal

Procedure. His statement as witness during trial has been recorded. Special Prosecuting Officer has filed objections stating therein that in his

opinion the applicant having made the deposition in conformity with his earlier statement on the basis of which he was tendered pardon, therefore,

prosecution does not require him anymore.

It appears that the trial court has not granted bail on two counts, first that the matter has been dealt with earlier by the High Court and secondly

Section 337(4) of Cr.P.C. mandates not to release the approver till conclusion of the trial.

Learned AAG appearing for the respondents has not opposed the grant of bail in view of the fact that the approver has made the statement

consistent with his statement made at the time he was granted pardon.

Now the question is as to whether Section 337(4) Cr.P.C can be allowed to be an impediment for releasing the approver. In the bird's eye

view, this provision enjoins not to release the approver until termination of the trial but this position has been threadbare considered by the Full

Bench of the High Court of Delhi while deciding case titled Prem Chand v. State (1985 Cri.L.J 1534) deciding on 30th November, 1984.

Para 18 and 22 of the judgment are relevant to be quoted:

We are further of the opinion that there is no rational basis for inflexible classification of approvers who are in detention, and those who

because of fortuitous circumstances happen to be on bail at the tune of grant of pardon. A person being granted bail and still not in detention are

not considered in law as incompatible. So far as allurement of release if allowed pardon, it is inherently there in any pardon. As such too much of

significance and rigidity need not be attached to time factor. Moreover, a witness, even though an accomplice need not be detained for more than

what is essential for procurement of or enabling him to give his evidence. His personal liberty can, therefore, be curtailed, if at all, for beneficial

ends of administration of justice, and once they are served, his further detention becomes irrelevant. His detention till that earlier stage, may also be

considered proper to avoid creation of the impression of too ready an approver to serve his personal end of immediate or early let off even in

cases where the involvement of the other accused in that crime may turn out to be doubtful. The existence of the provision of detention thus may

serve as a damper to opportunists who may be too keen to oblige the police, and also prevent a possible abuse of this process as a short-cut by

investigating agencies when they find no other evidence available or dubiously seek to involve innocent persons.

We as such direct the release of the petitioner subject to his furnishing a bond for Rs.10,000/- with one surety in the like amount in each of the

cases, to the satisfaction of the Additional Sessions Judge before whom the two cases, are pending to the effect that he will appear before the

Court whenever required to do so dusty"".

Keeping in view the law laid down, the petitioner deserves to be released on bail, as such, is directed to be released provided he furnishes bail

bond to the tune of Rs.50,000/- to the satisfaction of the trial court and the personal bond of like amount to the satisfaction of Superintendent Jail

concerned. He shall be bound by the bond till termination of the trial.

Application, accordingly, allowed, so shall stand disposed of.