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Judgment
S. Thangaraj, J.—The petitioner has filed this petition for his release on bail.
The deceased and the first accused were brothers and they had property dispute, which resulted in a civil suit. On 18.9.1998, civil suit was
posted for judgment, that the first accused entered into a criminal conspiracy along with other accused and as a result of the said conspiracy on
18.9.98 when the deceased and another person (also deceased) were coming in a two wheeler, a four wheeler driven by one of the accused
persons with the intention to commit the murder of those two persons dashed against them and as a result both of them died. The
respondent/police registered a case and investigated into the matter, ultimately filed a charge sheet against the present petitioner and others for
offences u/s. 120-B and 302 IPC. The petitioner turned approver and confession was recorded u/s. 164(1) Cr.P.C. The petitioner was examined
and cross-examined in the Committal Court and the case is pending trial before the Court of Sessions in S.C. No. 85/99.
The petitioner moved for his release on bail u/s. 439 Cr.P.C. before the learned Principal Sessions Judge, Cuddalore, and the same was
dismissed on 25.3.1999. Thereafter the petitioner has filed this petition before this Court.
Learned counsel for the petitioner has argued that his confession statement was already recorded by a learned Magistrate and he was also
examined and cross-examined in the committal Court and thereafter the case has been committed and since he is in custody for a period of one
year, he should be released on bail. In support of his contention the learned counsel for petitioner has relied on two Full Bench decisions of the
Delhi and Rajasthan High Courts. Opposing the bail petition, the learned Government Advocate has relied on a decision of the Supreme Court.
Section 306(4)(b) Cr.P.C. says-
Tender of pardon to accomplice: (4) 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;
(b) shall be, unless he is already on bail, be detained in custody until termination of the trial.
Relying on Section 306(4)(b) Cr.P.C., the learned Government Advocate has argued that he shall be detained in custody until the termination of
the trial as he is not on bail earlier.
In Prem Chand v. State 1985 (1) Cri 99 a Full Bench of the Delhi High Court after going through the relevant provisions and also Articles 14 and
21 of the Constitution of India held that u/s. 482 Cr.P.C. the High Court can exercise its inherent power in such circumstances and stated as
follows:
However, in cases where the circumstances unmitigatingly bring out that a grave injustice is being done, and an abuse of process of Court is taking
place, either as a result of the acts of the accused or the unavoidable procedural delays in the courts, we are of the firm opinion that the inherent
powers should and need to be exercised.
In the said case, a Single Judge of the Delhi High Court granted bail to an accused on the ground that his evidence has already been recorded and
as such one of the preventive objections underlying Section 306(4)(b) Cr.P.C. was complied with and that he was ready to safeguard himself from
the other accused persons in that case and that he was in custody for over a period of 2 1/2 years. The learned Judges of the Full Bench have
considered a decision of this Court in Karuppa Servai Vs. Kundaru alias Muniandi Thevan, wherein this Court had laid emphasis on the detention
of an approver till he has deposed at the trial in the Session Court truly and fully to matters within his knowledge. In the instant case, the petitioner
was arrested after the occurrence on 18.9.98, that he is in custody for less than one year, that during that period, the formalities to take him as an
approver have been done. Though the case is committed to Court of Sessions, Cuddalore Division, the Sessions trial is not yet commenced, as
such the petitioner has also not deposed at the trial in the Court of Session. The petitioner may argue that he would be able to take protection in
case any adventurism is sought to be displayed by his confederates, or his supporters. However, as he has not deposed at the trial in the Court of
Sessions, the same will stand against his petition for bail.
A Full Bench of Rajasthan High Court in Noor Taki alias Mammu Vs. State of Rajasthan, considered the earlier decisions of the Supreme Court
and the High Courts and held at page 1494-
Reasonable expeditious trial is warranted by the provisions of the Criminal Procedure Code and in case this is not done and an approver is
detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, this Court has always
power to declare his detention either illegal or enlarge him to bail while exercising its inherent powers.
In the instant case, such a situation has not arisen as the petitioner herein is in custody for less than a year and during that period also the necessary
proceedings to take him as an approver and recording of his evidence by the trial Court has been done and the case has been committed to the
Court of Sessions.
In Suresh Chandra Bahri v. State of Bihar) 1995 SCC (Crl) 60 at page 83 Their Lordships of the Supreme Court held-
The dominant object of requiring an approver to be detained in custody until the termination of the trial is not intended to punish the approver for
having come forward to give evidence in support of the prosecution, but to protect him from the possible indignation, rage and resentment of his
associates in a crime whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and
companions after he is granted pardon and released from custody. It is for these reasons that Clause (b) of Section 306(4) casts a duty on the
Court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy
and public interest, violation of which could not be tolerated.
In the same decision, the lines following the above quoted passage would go to show that the High Court can release the approver on bail.
However, we have already seen the grounds in the earlier two decisions, relied on by the petitioner, on which the approver can be released on bail.
As held by this Court in Karuppa Servai Vs. Kundaru alias Muniandi Thevan, that stage has not come for his release on bail as he has not been
examined in the Sessions Court. The period of his custody is also not a prolonged one so as to consider his release on bail u/s. 482 Cr.P.C.
From the various facts on record, it is justifiable to direct the Principal Sessions Judge, Cuddalore to fix the Sessions trial at an early date.
In the result, Crl.O.P. No. 12343/99 is dismissed. The Principal Sessions Judge, Cuddalore, is directed to fix the trial of this case at an early date
subject to schedule of sessions case already fixed by him and dispose of the case.