Tula Ram vs The State of Himachal Pradesh

D.B. Lal, J.—This petition by Tula Ram is one under Sections 439 and 482 of the Code of Criminal Procedure and also under Article 227 of the Constitution of India. A case u/s 304, Indian Penal Code, read with Section 77 of the Punjab Excise Act, was registered against the Petitioner and 13 others. The Sub-Divisional Magistrate, Paonta Sahib, committed these accused to the Court of Sessions vide his order dated March 20, 1973. Sometimes before the committal order, the District Magistrate, Sirmur, tendered pardon to the Petitioners. As such he was made the approver and was to appear as witness against the remaining accused. The statement of the approver-Petitioner has been recorded on several dates and is finally concluded on October 17, 1973. According to the averments made in the petition, the approver has made a full and true disclosure of the whole of the circumstances within his knowledge. He is in judicial custody and is ordered to be detained in custody until the termination of the trial.

The averments of the Petitioner are that in all 135 witnesses are to be examined by the prosecution and that only 16 have so far been examined. The conclusion of the trial is likely to take pretty long and a possibility of delay cannot be ruled out. The Petitioner has also submitted that he is sick and is likely to suffer more in case he is detained in custody. It is stated on his behalf that a different treatment has been given to a person already on bail and to whom pardon is granted, as compared to a person who is not on bail and to whom pardon is granted. This, according to Petitioner, amounts to discrimination under Article 14 of the Constitution. There is no likelihood for the Petitioner to abscond or to tamper with the other prosecution witnesses. On these grounds it is prayed that Section 306(4)(b) of the Code of Criminal Procedure be struck down as ultra vires the provisions of the Constitution and that the Petitioner be released on bail.

Section 306(4)(b) may be extracrd as below:

306.(4) Every person accepting a tender of pardon made under Sub-section (1)-

(a)....

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

The use of the word "shall" which precedes the words "unless he is already on bail" makes it evident that the provision is mandatory. Where the provision by itself suggests that the general powers of the court had been taken away or that there was a prohibition from passing contrary orders, the word ''shall'' will be deemed to be of mandatory nature see: Bhawani Singh v. The State AIR 1956 Bho 4. There is a salutary principle behind the provision of the approver to be detained in custody until the termination of the trial. The approver as a condition to his release is required to make a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor, in the commission thereof. He is thus obliged to fulfil that task entrusted to him. In case he is released from custody, he may abscond or even tamper with himself and as such may not fulfil the task. His being at large may not give him protection from the wrath of his confederates he has chosen to expose, or to prevent him from the temptation of saving his erstwhile friends and companions and to secure his person to abate the judgment of the law. These are questions of public interest and public policy. That is why the mandatory provision has been made in Section 306(4)(b) prohibiting release from custody of an approver until the termination of the trial.

The learned Counsel submitted that a case of discrimination under Article 14 is made out. He has founded his argument by saying that a person who is granted bail and who thereafter becomes an approver has been distinguished from a person who has not been granted bail or who has not applied for bail and is subsequently made an approver. In my opinion, these are two different categories and hardly a case of discrimination is made out. If a person is granted bail or refused bail, that has been done on merit. A person having received bail cannot be considered on the same footing as a person to whom bail is refused. In Bhawani Singh v. The State (supra), the vires of Section 337(3) of the Code of Criminal Procedure, 1898 was considered with reference to Constitutional provisions. It was held that it was within the powers of the legislature to lay down which persons can be released on bail and to whom bail cannot be granted. As the rule contained in Section 337(3) applies to all the approvers, it cannot be said that it makes a differentiation between a case where bail has been granted and then the person is made an approver and another case where bail is refused and thereafter the man turns to be an approver. Therefore, Section 306(4)(b) cannot be struck down as being contrary to any provision of the Constitution.

The learned Counsel then contended that the power of a superior court to grant bail u/s 439 of the Code of Criminal Procedure, 1973, cannot be done away with by a special provision contained u/s 306(4)(b) which perhaps applies to a Magistrate who grants pardon. I regret I am unable to agree with the learned Counsel. The very opening words of Section 439 are, that a person accused of an offence and in custody be released on bail on conditions laid down there in the section. Can it be stated that an approver, while in custody, is a person accused of an offence? Rather he is a witness appearing in the case against other persons who may be accused of an offence. When he is granted pardon and is made an approver, he ceases to be a person accused of an offence. Therefore, there is no apparent conflict between Section 306(4)(b) and Section 439. There is a mandatory prohibition engrafted in Section 306(4)(b), and in my opinion that prohibition has to be sustained as along as the trial is not terminated. It may be understood that the entire provision is based on questions of public interest and public policy. In this connection, reference may be made to Karuppa Servai v. Kundaru alias Muniandi Thewan AIR 1952 Mad 833 , A.L. Mehra Vs. The State, In the Madras case, it was specifically held that an approver cannot be put into the same position as an accused, and the provisions of Sections 497 and 498 (old Code) cannot be applied to him. The learned Judge, however, expressed a little doubt whether an approver can be released after he has given his full evidence in the Sessions Court and where the Public Prosecutor does not certify that there is anything concealed or false, even before the trial is over. In the Bhopal case (Bhawani Singh v. The State), it was held that Section 337(3) is mandatory. 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. Even if the termination of the trial takes a long period, the approver will have to be detained in custody. In the Punjab case, it was observed that the provisions relating to bail contained in Sections 497 and 498 do no over-ride the provisions of Sub-section (3) of Section 337; 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. Thus there appears to be no doubt that Section 306(4)(b) stands on an independent footing. Section 439 in its term does not apply, and hence the controversy as to the power to grant bail conferred on superior court, is devoid of any merit. It was further argued by the learned Advocate-General that according to Section 306, an approver has to make full and true disclosure of the whole of the circumstances within his knowledge. The finding thereto, can only be given when there is termination of the trial and the judgment is pronounced. Upon this, the learned Counsel contends that in no case an approver can be released from custody until the termination of the trial. I am not in a position to subscribe to this view because there may be a case in which a finding can be given that an approver has made a full and true disclosure of the whole of the circumstances and even the prosecuting agency may certify that he has done so. There may be yet another case where an approver falls so seriously sick that he would endanger his life in case he is kept in prison any longer. Perhaps in such a contingency, the court will exercise its inherent jurisdiction u/s 482 and release an approver from custody. In A. L. Mehra (supra) their Lordships actually exercised powers under their inherent jurisdiction and prevented the process of the abuse of the court by releasing the approver. I am, therefore, of the opinion that in a certain contingency an approver can be released from custody despite the mandatory provision contained in Section 306(4)(b) in exercise of the inherent powers of the High Court.

It is then to be considered as to whether in this particular case the approver is required to be released from custody. The only ground that has been asserted is that the trial is likely to take sometime more before it terminates. For this, a direction can be given to the learned Sessions Judge that he expedites with the hearing of the witnesses and concludes the trial within a reasonable period. It has been further stated that the approver is not feeling well and mostly remains sick in jail. That is hardly a ground for releasing him from custody at this stage.

The petition is, therefore, dismissed with this direction that the learned Sessions Judge shall complete the trial within two months from the date of this order. In case he is not able to do so, the Petitioner will be at liberty to file an application for his release and may invoke the inherent jurisdiction of the High Court.