Jayakodi vs State thro. S.I. Police

Nainar Sundaram, J.—The petitioner in this Criminal Miscellaneous Petition is an approver. He is seeking grant of bail pending investigation

in Crime No. 589/79, Sholavandan police station. His attempt to obtain bail before the Principal Sessions Judge of Madurai did not fructify,

because the learned Sessions Judge, in view of the provisions of [S. 306 (4) (b), Crl. P.C. felt that an approver could not be released on ball

unless he was already on bail. The same question Is being once again agitated before me In this Criminal Miscellaneous Petition,

Mr. T. S. Arunachalam, learned counsel for the petitioner, would rest his submissions on two grounds. One is that the general provisions found

in S. 437 of the Code will override S. 306 (4) (b) of the Code and the power to grant bail under the general provisions need not be circumscribed

by S. 306 (4) (b) of the Code. The second ground Is that this Court, being of superior jurisdiction, has got Inherent powers to grant ball de hors

limitations, if any, prescribed elsewhere in the Code. These submissions of the learned counsel are being sought to be repelled by Mr. N.

Karpagavinayagam, representing the State, by pointing out that an approver is not an accused who could invoke the provisions relating to ball and

even otherwise, the Inherent powers of this Court cannot be exercised when there are express limitations prescribed in the Code.

For the proposition that an approver cannot be equated to an accused, Mr. Karpagavinayagam relies on the decision of Panchapakesa Ayyar,

J., in Karuppa Servai v. Kundaro 1952 M.W.N. Cri 58. The principle recognised in the learned Judge''s decision is that an approver cannot be

put in the same position as an accused and the provisions of SS. 497 and 498 of the Crl. P. C. (V of 1898) (now Ss. 437 and 439 of the Crl.

P.C., 1973) cannot apply to him; an approver who was not on ball at the time he was tendered the pardon and accepted cannot be released on

bail in the course of the preliminary inquiry and before the inquiry has ended, and if committal ensues, before he has deposed in the Sessions Court

and the trial has concluded.

The question as to whether approvers can be enlarged on bail during the pendency of the trial before the Sessions Court, came up for

consideration before Paul, J., in Palanisami v. Gundu Palani 1979 L.W. Cri. 20, and the learned Judge, after discussing the earlier authorities

including the one in Karuppa Servai v. Kundara 1952 M.W.N. Cri 58, opined that it is not within the competence of the Court to admit an

approver to bail when the law declared in unambiguous language that an approver shall not be released on bail until the decision of the case and

that the provisions contained in Sub-s. (3) of S 337, Crl. P.C. (V of 1898) (presently S. 306 (4) (b), Crl. P.C. 1973) must be read as an

exception to the general provisions. In fact, Mr. T.S. Arunachalam, learned counsel for the petitioner, places reliance on the two decisions referred

to and considered by Paul, J. in the above decision, and I have no reason to take a different view from that expressed by Paul, J. In the said

decision.

I am also clear in my mind that the inherent jurisdiction of this Court cannot be resorted to and exercised if there is a specific provision in the

Code of Criminal Procedure which has dealt with the scope of powers of Court and from which it is possible to spell out a bar, express or implied,

with reference to the exercise of such Inherent jurisdiction. This principle has found recognition in the judgment of the Supreme Court in Madhu

Limaye Vs. The State of Maharashtra, .

Above all, there is a reason as to why an approver has to he detained in custody until the termination of the trial unless he is already on bail even

at the time when pardon is tendered to him. There is every chance that both the prosecution and the accused would be anxious to get at him and

make him resale from the statement which he has already given and the assurance that he will stick on to the statement and speak out the truth, to a

very great extent, will become nebulous. That is the reason why the provisions of the Code contemplate that an approver cannot be equated to an

accused and he cannot be let on bail until the termination of the trial unless he is already on bail having been admitted to bail on or before the

tendering of pardon to him.

7, If these principles are kept in mind, I am not able to persuade myself to countenance the case of the petitioner for the grant of the bail. It is

pointed out that the investigation is yet to be completed even though the occurrence is stated to have taken place on 15th December 1978. Mr.

Karpagavinanayagam, for the State assures that there will be expeditious completion of investigation by the officials concerned and this is

recorded. In the result, this Criminal Miscellaneous Petition is dismissed.