G. K. SHARMA, J. - (1.) THIS is an application under Section 482 read with Section 439 Cr. P. C. praying that Fariyad who is an approver and whose statement has been recorded by the trial Court be ordered to be released.
(2.) THE brief facts of this case are, that a case was registered against one Sharif and the petitioner Fariyad for the offence under section 302 I. P. C. for murdering Jamal Khan. During the investigation, the petitioner Fariyad was made an approver by the police, and he was arrested accordingly. After investigation, a challan was submitted and the petitioner was examined as an approver in the case. Since the other witnesses are to be examined and for that a report of the Forensic Laboratory was called for along with the gun, which was used as a weapon of the offence, the gun and the report could not be received from the Laboratory, and hence the statements of other witnesses were not recorded. THE statement of Fariyad approver has been recorded, he has been but detained in the Jail because the trial of the case has not yet concluded. The learned counsel for the petitioner has argued that though Section 439. Cr. P. C: does not apply in this case, but this Court has inherent power under Section 482, Cr. P. C. to order the release of the approver. The approver whose statement has been recorded cannot be detained indefinitely on account of the completion of the trial. He has cited the case to Re Dagdoo Bapu (1) which was followed subsequently in A. L. Mehra vs. The State (2 ). Pardon is granted under Section 306. Cr. P. C. According to Section 306 (4) Cr. P. C every person shall unless he is released on bail be detained in custody until the termination of the trial. Thus the provision of the law is that the approver is to be detained in the Jail until the trial of the case is over. Thus, there is no provision to release the approver on bail. But this High Court under its inherent powers can look into this matter, and this Court is competent to release the approver in case the trial of the case is not likely to be concluded within a reasonable period. In Re Dagdoo Bapu's case (supra) it has been observed:- "the offence under inquiry was an offence of murder and the accused was placed before the Magistrate on a charge of that offence on the 7th September 1920. But as the prosecution case was that another accused Dhondoo Surabhoo, who had absconded, was the principal offender the pardon was tendered. The principal offender has not been arrested, and it appears that there is no prospect of his arrest for trial. The prosecution desire the discharge of Dagdoo Bapu as otherwise he would be detained for an indefinite period in the custody as an approver. ' Further, it was observed in A. L. Mehra's case (supra), as under:- "it could not have been the intention of the Legislature that a person who has been granted a pardon in respect of a particular offence should be kept in confinement for an indefinite period particularly when Government have not been able to decide during the last 15 months whether the prisoners should be prosecuted at all. While there can be no doubt that the approver was apprehended under an originally valid and regular process duly and properly issued, his continued detention in custody when the prosecution of offenders is not being seriously contemplated appears to me to constitute an abuse of the process of the Court. Indeed the delay which is being occasioned in the decision of this important matter leaves one in reasonable doubt as to whether the detention of the approver is directed to achieve the object of law or merely to harass him for his part; in the crime. It seems to me therefore, that although the process of arrest was proper in its inception, the complaint of the approver arises in consequence of subsequent proceedings. Sub-section (3)of sec. 337 implies that there is a trial in progress and its object is to secure the evidence of the approver for such trial. If there is no such trial and no Likelihood of such a trial then cessante ratione len ipsa cessat. In re Dagdoo Bapu ILR 46 Bom. 120 at p. 123, (AIR 1922 Bom. 177 (1)at p. 177 (1) (J ). This is an eminently fit case in which the inherent powers of this court to prevent the abuse of the process of the Court be exercised in favour of a person who has been in confinement for several months and who was recently released on parole at the urgent request of the Solicitor-General. I direct that the approver shall be released on bail on furnishing security to the satisfaction of the District Magistrate. "
(3.) IN the present case, Fariyad approver is in Jail since 7-5-82. His statement has been recorded and completed on 26-5-83. It has been argued that he has fully supported the case of the prosecution. Because, the other witnesses are yet to be examined, and the delay is on account of non-receipt of the material exhibit from the Forensic Laboratory, and unless the gun is before the Court, the other witnesses cannot be examined. It means that the petitioner approver will continue to be detained in Jail for an indefinite period. This is not the intention of the Legislature. His statement has been completed and he is not required by the prosecution any more. As such, it is not justified to detain him in Jail indefinitely. Though the provisions of Section 439, Cr. P. C. do not apply in such cases, but this court has certainly inherent powers under Section 482, Cr. P. C. to order the release of the approver in the circumstances referred to above. In view of the law laid down by Bombay and Punjab High Courts, I perfectly agree with the principle laid down therein, and I am of the view that the approver who is not required any more for the trial of the case should not be detained indefinitely particularly when his statement has been recorded long before. I therefore, under the inherent powers, accept this petition and order that he shall be released on furnishing a personal bond of Rs. 5,000/- and a surety in the like amount to the satisfaction of the trial Court to appear before it as and when called upon by the trial Court. . ;