Palaniswami vs Gundu Palani and Others

Paul, J.—These are petitions for releasing P.Ws. 1 to 3 who are the approvers in S.C. No. 9 of 1978 on the file of the District and Sessions

Judge, Dharmapuri at Krishnagiri, pending trial of the aforesaid case. Crl. M P. No. 1539 of 1978 has been filed on behalf of Palaniswami alias

Gundu Palani, the approver, P.W 1. Cr.M.P. No. 1540 of 1978 has been filed on behalf of Govindaswami alias Mappillai, the approver, P.W. 2,

while Crl.M.P. 1541 of 1978 has been filed on behalf of Santhanam, the approver, P.W.3.

In the affidavit filed by one Marimuthu, who claims to be the brother-in-law of the petitioner in Crl M.P. 1539/78 it is stated that the approver

Palaniswamy was arrested in February, 1976 in connection with the murder of one Palaniappan and his son on 24th June 74 on the Poolavari

Parapatti Road, and on 17th April 76 a statement under S.164, Crl.P.C. was recorded from the approver by the Judicial Second Class

Magistrate, Rasipuram, and on 5th June 1976 pardon was tendered to him and he was taken as an approver and was examined as P.W.1 in

P.R.C. No. 3 of 1976 on the file of the Judicial First Class Magistrate No.1 of Salem on 9th May 77 and during the course of his testimony he had

alleged that he was forced by the police authorities to make a judicial confession and accept the pardon after having been kept under illegal

custody for a number of days during which he was subjected to torture, humiliation and threats by the police authorities and he was treated (sic)

hostile by the prosecution and was cross-examined by the prosecution and on 18th February 1978 a petition was even presented by the Special

Public Prosecutor to arraign him as an has accused, but it was dismissed and the petitioner been in custody for over two years and as such he may

be released on bail.

In the affidavit filed by one Sivagurunathan, who claims to be the son of the petitioner Govindaswami, in Crl. M.P. No. 1540 of 1978, it is

stated that the petitioner was arrested and kept in illegal custody and subjected to torture and humiliation and forced to give a statement under

S.164. Cr.P.C. and to accept a pardon and was made to speak to a false version as tutored by the police and when he was examined as P.W.2 in

P.R.C. No. 17/77 on 18th February 1978 he denied knowledge about this case and stated that the statement under S.164, Crl.P.C., was extorted

from him under pressure, threat and harassment and he has been in custody for over two years and as such he may be released on bail. In the

affidavit filed by one Vasantha, the wife of the petitioner in Crl.M.P. No. 1541 of 1978 also similar allegations have been made.

In the counters filed on behalf of the respondent by the Inspector of Police, Crime Branch, C.I.D. Madras on Special duty it is stated that

Palaniswami was arrested in the month of April 1976 and that the allegations contained in the affidavits filed in support of these petitions are false,

and that the two approvers, P.Ws.2 and 3 were not even treated hostile by the prosecution and further the prosecution has yet another opportunity

of confronting the approvers with their confessional statements in the court of Session and the prosecution cannot be deprived of that opportunity

and as such until the approvers are put in the witness box in the Court of Session and examined, they would continue to be approvers and

witnesses on the side of the prosecution and only after they are so examined at the trial, the Public Prosecutor will be enabled to decide about the

issuance of a certificate under S.308, Cr.P.C., and further according to the mandatory provisions of the Code an approver will not be entitled to

be released on bail until the trial is over.

It must be noted that the first approver P.W.1 has been charged with conspiracy as well as for murder while the other two approvers have been

charged with criminal conspiracy to commit the murders. S.306(4) Cr.P.C. states that every person accepting a tender of pardon made under sub-

section, (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,

and (b) shall unless he is already on bail, be detained in custody until the termination of the trial. S.308 states as follows:-

(1) Where, in regard to a person who has accepted a tender of pardon made under S 306 or S.307, the Public Prosecutor certifies that in his

opinion such person hat, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the

tender was made, such person may be tried for the offence in respect of which the pardon was so tendered-or for any other offence of which he

appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence; Provided that such person shall

not be tried jointly with any of the other accused.

Now, in the case of these three approvers even though they have not deposed before the Committing Magistrate in accordance with their

statements recorded, under S.164, Cr.P.C. a certificate under S.308, Cr.P.C. has not been issued by the Public Prosecutor as yet. Therefore,

they continue to be approvers and witnesses for the prosecution and have not yet been arraigned as accused, to be tried for the offences

committed by them in respect of which pardon had been tendered to them on condition.

The question is whether at this stage these persons can be released on bail merely because they have not before the Committing Magistrate

given testimony in accordance with their statements recorded under S.164, Cr.P.C. and also because they have been in judicial custody for the last

two years.

Relying on the decision in Arunasami Goundan 1959 M.W.N. Crl. 9 and the Gordhan Vs. Azimkhan and Another, Mr. Arunachalam, learned

counsel for the petitioners contends that it is not necessary that the approvers must be examined both in the court of the Committing Magistrate and

in the Sessions Court, because it could not be held that they have forfeited their pardon, and as such even now the Public Prosecutor could issue a

certificate under S.308, Cr.P.C. No doubt, according to the aforesaid decision it is so. But then it, is not obligatory on the part of the Public

Prosecutor to issue a certificate under S.308, Cr.P.C. the moment the approver fails to conform to the condition on which pardon had been

granted to him when he was examined before the Committing Magistrate. The learned Public Prosecutor could wait until the approvers are

examined at the trial and then decide whether a certificate under S.308, Cr.P.C. has to be issued.

The next question is whether the High Court has powers to grant bail to approvers before they are examined at the trial. In Mohamed Abdul

Majid v. Emperor AIR 1927 Sind. 173 it has been held that clause (3) of S.337 of Cr.P.C. of 1898 should be interpreted as obligatory only on

the Magistrate granting him the pardon requiring him to detain the accomplice in custody and as in no way affecting the powers of the superior

courts, but the discretionary powers of superior court to grant bail to approvers should be sparingly used.

In Karuppa Serval v. Kundaru alias Muniandi Thevan 1952 M.W.N. Crl. 58, however it was held that an approver cannot be put in the same

petition as an accused and the provisions of Ss.497 and 498, Cr.P.C. (1898) cannot apply to him, and an approver who was not on bail at the

time he was tendered the pardon and accepted it, 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.

Mr. Arunachalam on behalf of the petitioners, however, contends that this decision was rendered prior to the decision in Arunasami Goundan

In re 1959 M.W.N. Crl. 9 and as such it is the decision of the Division Bench in Arunasami Goundan In re, which would apply. But then in

Arunasami Goundan In re 1959 M.W.N. Crl. 9, the question at to whether an approver could be released on bail before he is examined at the trial

did not arise for consideration.

In A.L. Mehra v. State AIR 1958 Pun. 72 it has been observed that the object of requiring an approver to remain in custody until the

termination of the trial is not to punish the approver for having agreed to give evidence for the State, but to protect him from the wrath of the

confederates he has chosen to expose, to prevent him from the temptation of saving his erstwhile friends and companions and to secure his person

to await the judgment of the law; and the provisions relating to bail contained in Ss.497 and 498 do not override the provisions of sub-sec (3) of

S.337, Cr.P.C. (1898), and hence it is not within the competence of the court to admit an approver to bail when the law declares in unambiguous

language that an approver shall not be released until the decision of the case and that the provisions contained in sub-sec. (3) of S.337 must be

read as an exception to the general provisions contained in Ss.497 and 498.

In Bhavani Singh v. The State AIR 1956 Bho 4 it has been observed that S.337(3), Cr P.C. (1898) is mandatory and it can be given no other

meaning except that an approver already detained in custody, cannot be released on bail for the period the trial has not been concluded and even if

the termination of the trial takes a long period, the approver will have to be detained in custody.

In Emperor v. Shahdino Dhaniparto AIR 1940 Sind. 114 it has been observed that ""where an approver after accepting pardon under S.337

denies all knowledge of facts before the Committing Magistrate, on account of the threats and influences of the co-accused with whom he was

placed in the same prison cell and after being separated from the co-accused makes a full and true disclosure of facts relating to the offence before

the Sessions Court it cannot be said that the accused has forfeited his pardon. When the evidence given by the approver in the Sessions Court is in

accordance with the conditions of his pardon and is evidence upon which reliance may very well be placed, then the fact that in the Committing

Magistrate''s Court the approver gave false evidence cannot necessarily be taken to be non-compliance with the conditions of pardon"". This

decision is in no way inconsistent with the decision in Arunasami Goundan In re. Therefore, even though the approvers now before me do not

support the prosecution after accepting the pardon but denied before the Committing Magistrate all knowledge of the facts, they have yet another

opportunity to fulfil the conditions of their pardon when they are examined in the Sessions Court; and as I have said that even though the Public

Prosecutor may even after the approvers had denied knowledge of all facts before the Committing Magistrate issues a certificate under S.308.

Cr.P.C., nothing prevents the Public Prosecutor from examining the approvers in the Sessions Court during the trial and then considering the

question as to whether a certificate should be issued under S.308, Cr.P.C. Of course, it is not obligatory to examine the approvers before the

Sessions Court also before the Public Prosecutor considers the issuance of certificate under S.308, Cr.P.C., but that does not mean that the

moment that the approvers have denied all knowledge of the facts of the case before the Committing Magistrate the Public Prosecutor is bound to

issue such a certificate. Of course, the approvers, even before they are examined in the Committing Magistrate''s Court and before they are

examined in the trial, could always refuse to give evidence and take the position of an accused. In Basi Reddy Narappa v. Emperor AIR 1924

Sind 391 a Division Bench of this Court held that when an accused person rejects the condition of the pardon tendered to him and refuses to give

evidence as an approver before he is put into the box, his action, does not amount to forfeiture of his pardon so as to make his case fall under

S.339, Crl.P.C., and bar his joint trial with other accused persons. The acceptance of the pardon should continue in force till the accused actually

gives evidence, and then if he forfeits the pardon by not making a full and true disclosure of facts within his knowledge he should be separately

tried.

Taking all these factors into consideration I find that this is not the stage at which these approvers should be released on bail. Hence these

petitions are dismissed.