TMI Blog2010 (10) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... r not succumbing to the pressure of parting with their landed property situate in Mumbai A crime being CR No. 145 of 1995 was registered with D.N. Nagar Police Station, Mumbai. After completion of investigation, initially few persons were arrested and they were charge sheeted and tried for the offences punishable under Sections 302, 307, 120B, 23, 114 IPC, Sections 3, 25(1B)(a), 5, 27 of the Arms Act and Sections 3(2)(i), 3(2)(ii), 3(3), 3(5), 5, 6 of TADA Act by the Judge, Designated Court, Mumbai. The present respondents could not be tried as they were absconding. The Judge, Designated Court, vide judgment dated August 5, 1997 acquitted the accused who were tried. The State of Maharashtra carried appeal in the matter before this Court and vide judgment dated July 11, 2001, this Court partly set aside the judgment of the Judge, Designated Court, Mumbai and convicted some of the accused who were tried. 3. On September 18, 2002 Abu Salem Abdul Kayyum Ansari (respondent No. 1) and one Monika Bedi were arrested in Portugal. They were extradited and brought to India. The extradition was granted for respondent No. 1 in respect of Pradeep Jain murder case, Bombay Bomb Blast case and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the murder of Pradeep Jain. The Special Public Prosecutor put a specific question to the approver as to whether he wanted to tell the Court about the conspiracy of Pradeep Jain murder to which his answer was in the negative. Immediately, the Special Public Prosecutor issued a certificate under Section 308 Cr.P.C. that the approver has not complied with the condition on which pardon was tendered to him and, therefore, he may be tried separately. The order dated September 19, 2008 to the extent it is relevant reads as follows: ...The Id Spl. PP files certificate Under Section 308 of Cr.P.C. conveying that the approver witness Riyaz Ahmed has committed breach of conditions of the Pardon and the Pardon may be withdrawn and will be tried for same offence separately.... The matter was then adjourned to September 23, 2008. 8. On September 23, 2008, the Designated Court passed the following order: ... Mr. Sudeep Pasbola requests the court to allow him to cross examine the approver who is certified by the Id. Spl. PP to have committed breach of conditions of Pardon. The Id. Spl. PP opposes the said request on the ground that once the PP forfeits the pardon the witness re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution can not do so even if its witness turns hostile. The prosecution has only choice to bring supporting material through the cross examination by Id. Public Prosecutor. What action is to be taken against the approver who commits breach of condition of Pardon is to be decided later on as Section 308 of Cr.P.C. says that such person may be either tried for offence in respect of which the pardon was so tendered or for any other offence which appears to have been committed by him and also for giving false evidence. So the stage to decide which mode is to be adopted against such an approver is yet to come. However, simply because prosecution disowned its witness he does not loose a status of witness unless prosecuted separately in view of provisions of Section 308 of Cr.P.C. and as such accused has every right to cross examine such a witness. The question of probative value of his evidence is distinct one. However, in my opinion the defence has statutory right to cross examine the hostile witness or approver and as such accused in this case are entitled to exercise the right by cross examining the witness Riyaz Ahmed Siddiqui. 9. The State of Maharashtra is aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52), if the offence is triable exclusively by that court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. 11. Section 307 Cr.P.C. provides that at any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person. 12. Section 308 provides for the trial of the approver who has accepted tender of pardon but fails to comply with the condition of pardon. The said provision reads as under: Section 308.- Trial of person not complying with conditions of pardon. (1) Where, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307, the Public Prosecutor certifies that in his opinion such person has, either by willfully 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. The Magistrate of the first class, under Section 306, is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime. Section 307 vests the court to which the commitment is made, with power to tender a pardon to an accomplice. The expression, 'on the same condition' occurring in Section 307, obviously refers to the condition indicated in Sub-section (1) of Section 306, namely, on the accused making 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. An accomplice who has been granted pardon under Section 306 or 307 Cr.P.C. gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under Section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences.... 17. The above statement of law in Jagjit Singh 1989 Supp (2) SCC 770 cannot be understood as laying down that an accomplice who has been tendered pardon and called as a witness for prosecution must be continued to be examined as a prosecution witness although he has failed to comply with the condition on which the tender of pardon was made and a Public Prosecutor certifies that he has not complied with the condition on which the tender was made. As a matter of fact, in Jagjit Singh's 1989 Supp (2) SCC 770 case no certificate was given by the Public Prosecutor. The legal position that flows from the provisions contained in Sections 306, 307 and 308 Cr.P.C. is that once an accomplice is granted pardon, he stands discharged as an accused and becomes witness for the prosecution. As a necessary corollary, once the pardon is withdrawn or forfeited on the certificate given by the Public Prosecutor that such person has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely on any part of the evidence of such witness. 22. Section 315 of Cr.P.C. makes an accused person a competent witness for the defence and he may voluntarily give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. The said provision reads as follows: Section 315. Accused person to be competent witness - (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that- (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial. (2) Any person against whom proceedings are instituted in any Criminal Court under Section 98, or Section 107, or Section 108, or Section 109, or Section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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