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TMI Blog1988 (12) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... re arrested except one Gurdeep Singh Sehgal who was declared as a proclaimed offender. The accused Jagjit Singh and Gurvinder Singh turned approvers and they were granted pardon under Section 308 of the CrPC, 1973. They were examined as P.W. 1 and P.W. 2 in the committal case proceeding in the court of Chief Metropolitan Magistrate on December 24, 1985. Both these approvers resiled from their statements in the court of the Committing Magistrate. The accused persons were committed to the Court of Sessions to stand their trial for offences under Sections 121, 121A, 153, 153A, 302 and 307 I.P.C. and Sections 3, 5 and 6 of Explosives Substances Act. 3. On February 27, 1986, Surjit Kaur, another accused in the Transistor Bomb Case, against whom cases were pending in the Meerut, Ghaziabad and Aligarh Districts of U.P., moved an application under Section 406 of the CrPC before this Court for transfer of criminal case pending in the court of Meerut to a court in Delhi. This Court after hearing Counsel for the State of Uttar Pradesh has directed that criminal cases referred to at Serial Nos. 1, 2, 3 and 5 in paragraph 2 of the transfer petition stand transferred to the Court of the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. It has also been contended that he resiled from his statements in the court of the Committing Magistrate and he has not accepted the pardon granted to him by the Magistrate. He should be arrayed as an accused in the case F.I.R. No. 238/85 and should be tried as an accused along with other accused in the said case. This contention is not tenable in as much as the pardon granted to the respondent, Jagjit Singh was accepted by him and other approver, Gurvinder Singh who were examined as P.W. 1 and P.W. 2 in the court of the Committing Magistrate. These approvers, of course, resiled from their statement in the court of the Committing Magistrate. It has therefore, been submitted that the prosecution cannot examine him as a witness in the said case as he has cast away the pardon granted to him. This submission, in our considered opinion, is not tenable in as much as Sub-section (4) of Section 306 of CrPC clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. It is therefore, a mandate of the provisions of the said Act to the prosecution to examine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdon granted to an approver and his claim not to be examined by the prosecution as a witness before the trial court is without any substance. It has been submitted in this connection by citing a decision In re Arusami Goundan AIR 1959 (Mad) 274 that the accomplice who has been tendered a pardon if at any stage either wilfully conceals material particulars or gives false evidence and thereby fails to comply with the conditions on which pardon was tendered to him and thereby incurs its forfeiture he should not be compelled by the prosecution to be examined as a witness before the trial court. It has been observed even in the said case that the provisions of Section 337(2) of the old CrPC, 1898 (5 of 1898) provide that the approver who has been tendered pardon must be examined both in the Committing Court and the Court of Sessions. It has been held that: The obligation to make a full and true disclosure would arise whenever the approver is lawfully called upon to give evidence touching the matter; it may be in the Committing court, or, it may be in the Sessions Court. But, the obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also not tenable in as much as once an accused is granted pardon under Section 306 of the CrPC, he ceases to be an accused and becomes a witness for the prosecution. The only condition imposed by the provisions of the Act is that the approver must make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other concerned, whether as principal or abettor, in the commission thereof. So long as the Prosecution does not certify that he has failed to do so he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court. This has been made very clear by this Court in the case of A.J. Peiris v. State of Madras AIR1954SC616 wherein it has been observed that: ...We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and became a witness. 12. We have already held hereinbefore that Sub-section 4 of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the trial court. So the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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