Chh HC | Can an ‘Approver’ who has been granted pardon under S. 306(1) CrPC be released on bail in exercise of inherent jurisdiction under S. 482 CrPC in view of bar under S. 306(4)(b) of the Code? HC answers

Chhattisgarh High Court: Sanjay K Agrawal, J. granted bail observing various provisions relating to the inherent powers of High Court regarding granting bail in the instant case.

The facts of the case are that the petitioner along with other co-accused was charged for offence under Section 420 read with Section 34 of the IPC along with Section 10 of the Chhattisgarh Protection of Interest of Depositors Act, 2005. Previously the petitioner’s application for anticipatory bail and regular bail has been rejected. Then he filed SLP which was also rejected by the Supreme Court on 11-03-2019 directing to conclude the trial within one year. Thereafter, the petitioner prayed for pardon under Section 306 (1) of CrPC which was granted by Judicial Magistrate First Class vide order dated 17-02-2020. After this, the petitioner applied for bail stating that since pardon has been granted his status has been changed from an accused to a witness and hence is liable to be granted bail which was rejected as the petitioner was not already on bail, in view of legislative bar engrafted under 306 (4)(b). Hence the present petition has been preferred to invoke the inherent jurisdiction of High court under Section 482 of CrPC for admitting bail.

Counsel Amit Kumar Chaki submitted that Sections 437 and 439 of the Code are not applicable for as after being granted pardon he has now attained the status of a witness i.e. has become ‘approver’ in view of Section 306(1) instead of an accused. He further submitted that the approver has been in jail for three years and in view of the present COVID situation the trial can take long as it has already been delayed in spite of the Supreme Court’s order for fast disposal. He further submitted that the bar engrafted under Section 306(4) (b) is confined to that of the Court of jurisdictional Magistrate only where the trial is pending. He further stated that power of the High Court under Section 482 of the Code is not in any way inhibited by Section 306(4)(b) of the Code, as its applicability is fully confined to that of the jurisdictional Magistrate considering the application under Section 306(1) CrPC.

Counsel Animesh Tiwari for respondents submitted that power under Section 482 CrPC has to be used sparingly in exceptional circumstances. He further submitted that most of the witnesses has been examined and hence it would not take much time for the conclusion of the trial and hence it is a fit case to be dismissed.

Counsel Anurag Dayal Srivastava appeared as amicus curiae and informed the Court that the applicability of Section 306(4) of the Code is confined only to that of a Magistrate trying the case, and the Sessions Judge while granting pardon under Section 307 of the Code is empowered only to enlarge the approver on bail. He further made clear that the provisions engrafted under Section 306(4) of the Code are not attracted if the accused has tendered pardon after the commitment of the case under Section 307 of the Code. 

Objective of Section 306 (4) (b) as stated by amicus curiae [Prem Chand v. State 1985 Cri. L.J. 1534]

The objective of the provision of Section 306(4) (b) of the Code is not meant to punish the person in whose favour pardon has been tendered but to protect him from the possible indignation, rage and resentment of his associates in a crime to 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.

Objective of Section 306 CrPC [Bangaru Laxman v. State (2012) 1 SCC 500]

The main purpose is to prevent failure of justice by allowing the offender to escape from a lack of evidence and not to judge the extent of culpability of the persons to whom the pardon is tendered.

The Court further observed:

“….the provision under Section 306(4)(b) of the Code is applicable to the Judicial Magistrate First Class if the pardon is granted by him, but if the pardon is granted to accomplice by the learned Sessions Judge under Section 307, Section 306(4) particularly clause (b) mandating his continuation of custody till the termination of trial would not be applicable and the learned Sessions Judge would have the jurisdiction to release him on bail if found appropriate.”

The Court relied on the judgment titled Noor Taki v. State of Rajasthan 1986 SCC Online Raj 11 held that that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the Constitution. The Court further held that if an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, then Section 482, CrPC gives wide power to this Court to declare his detention either illegal or enlarge him to bail while exercising its inherent powers.

In view of the above and taking note of the fact that the trial has been delayed even past the order of the Supreme Court for disposal, the Court deemed fit to enlarge the petitioner on bail, directing the trial court to dispose of the case expeditiously.[Rajkumar Sahu v. State of Chhattisgarh, 2020 SCC OnLine Chh 109, decided on 15-07-2020]

*Arunima Bose, Editorial Assistant has put this story together

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