- (1.) THIS is an application for releasing from the custody by one Lallu alias Prem, who has been granted pardon as an approver in a case under sec. 302 IPC pending in the court of Additional Sessions Judge No. 2, Jaipur City. After the statement of the petitioner was finally recorded during the trial on 2nd September, 1978, he moved an application that he had complied with all the conditions of pardon and his statement has also been recorded during the course of inquiry before the Magistrate and also during the trial before the learned Additional Sessions Judge and there remains nothing to be done by him, he should be released on bail inasmuch as only 18 witnesses of the prosecution have been examined during the last three years, and, 54 prosecution witnesses have yet to be examined which may take a very long time, and, specially when all the three accused persons have been released on bail, there was no justification for keeping him in custody any longer and an order should be given to release him forthwith. A prayer in this regard was made by the petitioner but the learned trial Court by its order dated 20th October, 1978, dismissed the same, as such the petitioner has come before this court in the exercise of its revisional jurisdiction under sec. 397 Cr. P. C.
(2.) LEARNED counsel for the petitioner has vehemently contended that it is admitted by the prosecution that the petitioner has not violated any conditions of pardon and he has already remained in jail for a period of three years and there is no chance of his being released still for a period of three to four years as 54 prosecution witnesses have yet to be examined. He has further contended that the accused persons who are the main culprits in the case have been released on bail and it would be very harsh and unjust if the petitioner who has helped the State in bringing out the truth before the Court, will have to remain behind the bars without any just cause. In these circumstances the learned counsel for the petitioner has appealed that this court should pass an order for releasing the petitioner in exercise of its inherent powers. LEARNED counsel has cited Mohammed Abdul Majid vs. Emperor (l), Karupa Servai vs. Kundaru alias Muniandi Thevan (2) and A. L. Mehra vs. The State (3 ). Learned Public Prosecutor, on the other hand, has argued that there is no illegality in the order of the trial Court. Provisions of sec. 306 (4) (b) clearly provides that every person accepting a tender of pardon made under sub-sec. (1) shall unless he is already on bail be detained in custody until the termination of the trial. He, therefore, argued that the petitioner was not on bail at the time of accepting a tender of pardon and as such there is no option but to detain him in custody until the termination of the trial. He has placed reliance on Pajerla Krishna Reddi vs. State (4) and Ayodhya Singh vs. State (5 ). Inspite of all sympathies with the petitioner, I feel myself bound by the clear mandate of the legislature and the Judicial pronouncement given in this regard. In Mohammed Abdul Majid's case (supra) Peroival K. J. C. has taken the view that sec. 337 of the Cr. P. C. (which is analogous to the provisions of sec. 306 of the Cr. P. C. , 1973) being a special section dealing with approvers controlled the general powers of granting bail under section 498 Cr. P. C. Though Roop Chand Bilaram A. J. C. had taken a contrary view and had held : "i can also find nothing in this clause or in any others provisions of the code to suggest that the Legislature wished to favour accomplices who were on bail before their pardon or to place them on a better footing than those who had not got such pardon. If the admission of guilt puts an end to the privilege of being permitted to remain on bail it equally applies to both, and if special circumstances exist which make it highly improbable that an accomplice will not abscond or be tempered with and entitle one who was released on bail before his pardon to continue on bail there is no reason why the same circumstances should not enure for the benefit of another who has unfortunately remained in custody up to the time of his pardon. If an extreme example is taken of an approver who is so dangerously ill that the only chance of his getting better is his being entrusted to the care of his near and dear relations. I can see no reason why he should be detained in custody resulting in the serious loss to the Crown of his evidence by death. " In Karuppa Servia's case (supra) it was held that:- "besides an approver has to be kept in safe custody till the conclusion of the trial (or inquiry if no committal ensues) like a sealed will in a will forgery case and then disposed of according to merits. He is not to be allowed to be let off on bail, when he is not on bail at the time he is tendered a pardon, but is to be kept in safe custody, free from police control on influence or the influences of the accused. If he is released on bail after he has given a statement in the enquiry court in full conformity with the statement given by him before the District Magistrate, it is obvious that the Police and the accu-used can both get at him freely thereafter, and there will be no guarantee that he will give out the whole truth at the trial if committal ensuse. Truth at the trial, in the case of an approval, does not mean sticking to the very statement given by him before the District Magistrate or in the Committal Court, but speaking to the true facts as they occurred, for Truth is one, and not two. The Public Prosecutor, before he can make an approver an accused, has to certify under Sec. 339 (1), Criminal Procedure Code, that, in his opinion, the approver has wilfully concealed anything essential or given false evidence or not complied with the conditions of which the tender of pardon was made. It is of vital importance both to the accused and to the public that an approver should not be treated like an ordinary accused of witness, but strictly according to the provisions of the Criminal procedure Code, sec. 337 (3) being the prime provisions regarding him. There may be a little doubt whether an approver can be released after he has given his full evidence in the Sessions Court, and where the Public Prosecutor does not certify that there is anything concealed or false even before the trial is over; but there is no doubt at all that he cannot be released on bail at an earlier stage (if committal ensues) when he was not on bail at the time he was tendered the pardon and accepted it. Usually, a Sessions Court releases an approver in a murder case after the whole trial is over, and the verdict is given and judgment delivered, because only at that stage can it be seen whether the approver's evidence has been a full and true disclosure of all the facts he knows, or not. " In Pajerla Krishna Reddi's case (supra) it was held that: - "an approver who was in remand when he was tendered a pardon must be detained in custody under Sec. 337 (3) till the termination of the trial if committal ensues or till the termination of the enquiry if committal does not ensue. The fact that he is said to have turned hostile is immaterial. " It was further held that: - "that other accused have been let off on bail is immaterial as he is not an accused; that other witnesses are not detained in custody is immaterial as he is not a mere witness but an approver-witness subject to the mandatory provisions of Sec. 337 (3) Criminal Procedure Code. " In A. L. Mehra's case (supra) it was held that: - "nor is there any substance in the contention that, notwithstanding the provisions of sub-sec. (3) of sec. 337, the Court has inherent power to admit an approver to bail if he is able to produce facts at the hearing sufficient to entitle him to bail. A Court possesses inherent power to do all things are reasonable necessary for the administration of justice within the scope of the jurisdiction, but it is impossible to hold that power to grant bail is reasonably necessary for the administration of justice or that in the absence of this power it is impossible for this Court to perform the functions which have been vested in it by law. In any case the inherent power if any has been expressly taken away by the enactment of sub-sec. (3)" Learned counsel for the petitioner, however, drew my attention to the following observation in the above case : "if the prisoners are not to be brought to trial under sec. 5 of the Prevention of Corruption Act or if there is no likelihood of such trial in the near future, or if their prosecution under that section is to be indefinitely postponed it would in my opinion be a travesty of justice to keep the approver in confinement until the termination of the trial. " In the above case the petitioner A. L. Mehra was granted a pardon by the District Magistrate Delhi with regard to cases registered by the police under secs. 155a, and 120b of the Penal Code, sec. 5 of the Prevention of Corruption Act. However the complaint was not filed under the above sections in respect of which pardon was granted to Mehra but a complaint under sec 13 (3) of Official Secret Act was filed. In the above facts and circumstances their Lordships observed: "if there is no such trial and no likelihood of such a trial then cessantre rations lex insa cesant. In re Dagdoo Bapu I. L. R. 46 Bom: 120 at P. 123: (AIR 1922 Bom. 177 (1) at P. 177 (1) (3 ). "this is eminently fit case in which the inherent power 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. " Thus in the above case there was no question of applying sub-sec. (3) of sec. 337 as Mr. Mehra was not at all tried for the offence for which he was granted pardon. The above authority, therefore, can give no assistance to the petitioner.
(3.) IN Ayodhya Singh's case (supra), this court has already taken the view as mentioned below: - "sec. 337 (3) Criminal P. C. runs as follows: "such person unless he is already on bail, shall be detained in custody until the termination of the trial. " The word "shall" has been used in sub-sec. (3 ). It is true that the nature of any provision whether discretionary or mandatory is not to be construed from the word 'shall' or 'may' used therein. IN certain cases, the 'shall' can be regarded to be not a mandatory nature if on consideration of enactment as a whole it appears the discretion has been left open for the Court. A bare reading of sub-sec. (3) would reveal that the general powers of the Court regarding granting of bail and had been taken away by this sub-section. IN the sub-section the Legislature has not only used the word 'shall' but it is preceded by the words 'unless he is already on. bail'. These words clearly suggest that the Legislature has prohibited the Court from passing contrary orders. The word 'shall' in the present context must be deemed to be a mandatory nature. According to sub-sec. (3) an approver has to be kept in custody till the termination of the trial. He is not to be allowed to be let off on bail when he is not on bail at the time he is tendered pardon. It is not the case of the petitioner that he was on bail on the date he was made approver or tendered pardon. The case of the petitioner stands fully covered by sub-sec. (3) of Sec. 337 Criminal P. C. The petitioner has stated that long period of time would be spent in concluding the trial as the prosecution has cited 174 witnesses in the case. Delay in disposal of the case cannot be considered a valid ground where the law prohibits the release of the approver till the termination of the trial. " IN view of the above decisions it is clear that sec. 306 of the Code of Criminal Procedure, 1973 is a special provision for the approvers and general provisions of granting bail have been excluded in their cases. This Court cannot go behind the wisdom or policy of the legislature as expressly laid down under sec. 306 Code of Criminal Procedure, 1973, IN case an approver has not been released on bail at the time when his pardon tendered by him is accepted then he is bound to be detained in custody until the termination of the trial. When there is a specific provision in the Code of Criminal Procedure Code, this court cannot exercise its powers under its inherent jurisdiction. There is no escape from the conclusion that the petitioner shall have to be detained in custody until the termination of the trial, even though the other accused persons have been released on bail. It is for the legislature to make any provision in such contingency. In the result this revision fails and it is dismissed. However, the learned Additional Session Judge No. 2. Jaipur City, who is trying the case, is directed to dispose of the case as expeditiously as possible which should not go beyond six months. .;