PALANISWAMI Vs. GUNDU PALANI AND OTHERS

JUDGEMENT

(1.) THESE are petitions for releasing P.Ws. 1 to 3 who are the approvers in S.C. No. 9 of 1978 on the file of the District and Sessions Judge, Dharmapuri at Krishnagiri, pending trial of the aforesaid case. Crl. M P. No. 1539 of 1978 has been filed on behalf of Palaniswami alias Gundu Palani, the approver, P.W 1. Cr.M.P. No. 1540 of 1978 has been filed on behalf of Govindaswami alias Mappillai, the approver, P.W. 2, while Crl.M.P. 1541 of 1978 has been filed on behalf of Santhanam, the approver, P.W.3.

(2.) IN the affidavit filed by one Marimuthu, who claims to be the brother -in -law of the petitioner in Crl M.P. 1539/78 it is stated that the approver Palaniswamy was arrested in February, 1976 in connection with the murder of one Palaniappan and his son on 24th June 74 on the Poolavari Parapatti Road, and on 17th April 76 a statement under S. 164, Crl.P.C. was recorded from the approver by the Judicial Second Class Magistrate, Rasipuram, and on 5th June 1976 pardon was tendered to him and he was taken as an approver and was examined as P.W.1 in P.R.C. No. 3 of 1976 on the file of the Judicial First Class Magistrate No.1 of Salem on 9th May 77 and during the course of his testimony he had alleged that he was forced by the police authorities to make a judicial confession and accept the pardon after having been kept under illegal custody for a number of days during which he was subjected to torture, humiliation and threats by the police authorities and he was treated (sic) hostile by the prosecution and was cross -examined by the prosecution and on 18th February 1978 a petition was even presented by the Special Public Prosecutor to arraign him as an has accused, but it was dismissed and the petitioner been in custody for over two years and as such he may be released on bail.

(3.) IN the counters filed on behalf of the respondent by the Inspector of Police, Crime Branch, C.I.D. Madras on Special duty it is stated that Palaniswami was arrested in the month of April 1976 and that the allegations contained in the affidavits filed in support of these petitions are false, and that the two approvers, P.Ws.2 and 3 were not even treated hostile by the prosecution and further the prosecution has yet another opportunity of confronting the approvers with their confessional statements in the court of Session and the prosecution cannot be deprived of that opportunity and as such until the approvers are put in the witness box in the Court of Session and examined, they would continue to be approvers and witnesses on the side of the prosecution and only after they are so examined at the trial, the Public Prosecutor will be enabled to decide about the issuance of a certificate under S. 308, Cr.P.C., and further according to the mandatory provisions of the Code an approver will not be entitled to be released on bail until the trial is over.