Criminal Appeal No 640 of 1988
From the Judgment and Order dated 2741987 of the Delhi High Court in Crl
Rev No 221 of 1986
B Datta Additional Solicitor General Kitty Kumar Mangalam and Miss A Subhashini for the Appellant
Hardev Singh and RK Agnihotri for the Respondent
The Judgment of the Court was delivered by RAY J
Special leave granted
Heard learned counsel for the parties
The prosecution case in short is that to create fear and terror to commit murder and to aggravate tense situation some persons hatched a conspiracy to massacre the general public by placing transistor bombs at public places and also by placing them in public transports as trains buses etc
Many explosions took place in May 1985 in Delhi and parts of Uttar Pradesh in consequence whereof many persons were killed in Delhi and some places in Uttar Pradesh
Several cases were registered in different police stations of Aligarh Ghaziabad Meerut and Khekra etc
In Delhi FIR No 238 of 1985 was registered ie State vs Kartar Singh Narang etc
wherein all the accused persons named therein were arrested except one Gurdeep Singh Sehgal who was declared as a proclaimed offender
The accused Jagjit Singh and Gurvinder Singh turned approvers and they were granted pardon under Section 308 of the Code of Criminal Procedure 1973
They were examined as PW 1 and PW 2 in the committal case proceeding in the court of Chief Metropolitan Magistrate on December 24 1985
Both these approvers resiled from their statements in the court of the Committing Magistrate
The accused persons were committed to the Court of Sessions to stand their trial for offences under Sections 121 121A 153 153A 302 and 307 IPC and sections 3 5 and 6 of Explosives Substances Act
PG NO
1096 On February 27 1986 Surjit Kaur another accused in the Transistor Bomb Case against whom cases were pending in the Meerut Ghaziabad and Aligarh Districts of UP moved an application under Section 406 of the Code of Criminal Procedure before this Court for transfer of criminal case pending in the court of Meerut to a court in Delhi
This Court after hearing Counsel for the State of Uttar Pradesh has directed that criminal cases referred to at Serial Nos 1 2 3 and 5 in paragraph 2 of the transfer petition stand transferred to the Court of the Chief Metropolitan Magistrate Delhi and shall be tried along with the case instituted in the Court of the Chief Metropolitan Magistrate Delhi arising out of FIR No 238 of 1985 of Police Station Patel Nagar New Delhi
When the matter was taken up in the Court of Sessions the respondent Jagjit Singh the approver moved an application that he cannot be examined as a witness as he had not accepted the pardon and did not support the prosecution version and he was forced to make a wrong statement by the police before the Metropolitan Magistrate
The application was rejected by the Trial Judge after hearing the arguments of the parties on March 1 1986
Against this order a Criminal Revision Petition No 92 of 1986 was filed by the respondent Jagjit Singh in the High Court at Delhi
This application was heard by Jagdish Chandra J who dismissed the petition on August 12 1986 holding that the mandate of the law requiring that the approver shall be examined both before the Committing Magistrate as well as during trial as a witness is binding not only on the trial court and the prosecution but also on the approver as well
Thereafter one of the accused person who was a proclaimed offender was arrested and a supplementary challan was filed in the Court of Metropolitan Magistrate Delhi
The respondent Jagjit Singh was sought to be examined as an approver by the prosecution in the said supplementary committal proceeding in FIR No 238 of 1985
The respondent objected to his being summoned as an approver on the ground inter alia that he cannot be examined as a witness in a case though he is figuring as an accused person in other five cases on the same facts and circumstances which are being jointly tried
The Chief Metropolitan Magistrate Delhi dismissed the application by his order dated October 6 1986
Against this order the respondent Jagjit Singh filed Criminal Revision Petition No 221 of 1986
MK Chawla J after hearing the parties allowed the Revision Petition and directed the State not to examine the respondent approver as an approver in case FIR No 238 of 1985
PG NO
1097 Aggrieved by this order this appeal by special leave has been filed by State
It has been urged that the statement recorded under Section 164 of the Code of Criminal Procedure was not made by the respondent Jagjit Singh voluntarily but it was obtained under coercion by the police
It has also been contended that he resiled from his statements in the court of the Committing Magistrate and he has not accepted the pardon granted to him by the Magistrate
He should be arrayed as an accused in the case FIR No 23885 and should be tried as an accused along with other accused in the said case
This contention is not tenable in as much as the pardon granted to the respondent Jagjit Singh was accepted by him and other approver Gurvinder Singh who were examined as PW 1 and PW 2 in the court of the Committing Magistrate
These approvers of course resiled from their statement in the court of the Committing Magistrate
It has therefore been submitted that the prosecution cannot examine him as a witness in the said case as he has cast away the pardon granted to him
This submission in our considered opinion is not tenable in as much as sub section 4 of Section 306 of Code of Criminal Procedure clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial if any
It is therefore a mandate of the provisions of the said Act to the prosecution to examine the approver to whom pardon has been granted as a witness both in the Committing Court as well as in the trial court It does not matter whether the approver has resiled from his statement and has not made a full and true disclosure of whole of the circumstances within his knowledge relating to the offence so long as the Public Prosecutor does not certify that in his opinion the approver has either wilfully concealed anything essential or has given false evidence contrary to the condition on which the tender of pardon was made
It has been next contended that the grant of pardon is in the nature of a contract between the State granting the pardon on the one hand and the person accepting the pardon on the other hand
As the State has the power to revoke the pardon at any time the approver has also got the reciprocal right to cast away the pardon granted to him
This submission is also not tenable
The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon
Hence a pardoning power can attach any condition precedent or subsequent so long as it is not illegal immoral or impossible of performance
Section 306 clearly enjoins that the approver who was PG NO 1098 granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor in the commission thereof
It is because of this mandate the State can not withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court
The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him still the prosecution has to examine him as a witness in the trial court
It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which 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
In these circumstances the question of casting away the pardon granted to an approver and his claim not to be examined by the prosecution as a witness before the trial court is without any substance
It has been submitted in this connection by citing a decision In re Arusami Goundan AIR 1959 Madras 274 that the accomplice who has been tendered a pardon if at any stage either wilfully conceals material particulars or gives false evidence and thereby fails to comply with the conditions on which pardon was tendered to him and thereby incurs its forfeiture he should not be compelled by the prosecution to be examined as a witness before the trial court
It has been observed even in the said case that the provisions of Section 3372 of the old Code of Criminal Procedure 1898 5 of 1898 provide that the approver who has been tendered pardon must be examined both in the Committing Court and the Court of Sessions it has been held that The obligation to make a full and true disclosure would arise whenever the approver is lawfully called upon to give evidence touching the matter it may be in the Committing court or it may be in he Sessions Court
But the obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence
If at any stage he either wilfully conceals material particulars or gives false evidence he would failed to comply with the conditions on which the pardon was tendered to him and thereby incurred its forfeiture
Neither as a matter of reason or logic nor as a matter PG NO 1099 of statutory interpretation can it be said that section 3391 is dependent on or connected with section 3372 in the sense that the approver must be examined both in the Committing Court and the Sessions Court before it can be held that he has forfeited his pardon
It is sufficient if he fails to conform to the conditions on which the pardon has been granted to him at either stage This decision has been considered in Emperor vs Shandino Dhaniparto AIR 1940 Sind 114 wherein it has been held that When an accused after accepting pardon denies all knowledge of facts before the Committing Magistrate and the case is committed to Sessions Court the pardon cannot be forfeited before the accused is examined in the Sessions Court
Once a pardon is tendered and accepted section 3372 renders it obligatory for the prosecution to examine the approver both in the Committing Magistrate s Court and in the Sessions Court should the case be committed
Failure of the prosecution to examine the approver in the Sessions Court vitiates the trial
 The provisions of Sections 337 and 339 of the old Code of Criminal Procedure are almost in identical terms with the provisions of Sections 306 and 308 of the Code of Criminal Procedure 1973
This submission on a plain reading of these sections cannot be sustained
It has been urged with great vehemence that the appellant Jagjit Singh was granted pardon with regard to case FIR No 238 of 1985 whereas his name appears as an accused in the other four cases which have been directed to be tried along with above case wherein the facts are almost similar
The appellant approver in such circumstances should not be examined by the prosecution as a witness in as much as his evidence may be used in the other criminal cases wherein he figures as an accused
This is against the protection given by Article 23 of the Constitution of India
It has therefore been submitted that the order dated April 27 1987 passed in Revision Petition No 221 of 1986 directing the State not to examine the approver as a witness should not be set aside
This contention is also not tenable in as much as once an accused is granted pardon under section 306 of the Code of Criminal Procedure he ceases to be an accused and becomes a witness for the prosecution
The only condition imposed by the provisions of the Act is that the approver must make a full and true disclosure of the whole of the circumstances within his PG NO 1100 knowledge relating to the offence and to every other concerned whether as principal or abettor in the commission thereof
So long as the Prosecution does not certify that he has failed to do so he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court
This has been made very clear by this Court in the case of AJ Peiris vs State of Madras AIR 1954SC 616 wherein it has been observed that  We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and became a witness
 We have already held hereinbefore that sub section 4 of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the trial court
So the appellant who has been granted pardon in case FIR No 23885 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question
It will be pertinent to mention here Section 132 of the which lays down that A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings upon the ground that the answer to such question will criminate or may tend directly or indirectly to criminate such witness or that it will expose or tend directly or indirectly to expose such witness to a penalty or forfeiture of any kind
Proviso Provided that no such answer which a witness shall be compelled to give shall subject him to any arrest or prosecution or be against him in any criminal proceeding except a prosecution for giving false evidence by such answer
Therefore a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly
Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution PG NO 1101 nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer
The provisions of proviso to Section 132 of the clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly
In view of this provision the apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused is without any basis
On the other hand he is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver in the said case
This submission of the respondent is therefore not tenable
It is pertinent to refer in this connection the decision of this Court in Laxmipat Choraria and Ors
vs State of Maharashtra
wherein it has been observed by Hidayatullah J as he then was that  
Under section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding among others upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind
The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can ii be prove i against him in any criminal proceeding except a prosecution for giving false evidence by such answer
 So Section 132 of the Evidence Act sufficiently protects him since his testimony does not go against him
For the reasons aforesaid the appeal is allowed
The judgment and order dated April 27 1987 passed in Revision Petition No 221 of 1986 is hereby set aside
RSS Appeal allowed


Summary:
The respondent assessee built up a factory for the manufacture of paper and paper boards which started production on 751964
The respondent claimed that the duty in respect of the paper boards manufactured in the factory during the period 751964 to June 1966 was payable at the concessional rates allowed by the Government of India notification dated 1st March 1964
The claim was however rejected by the Revenue on the ground that the factory had not come into existence on or before the 9th day of November 1963 as stipulated in clause a of Proviso 3 of the said notification
The respondent s writ application before the High Court was allowed by the Single Judge and the appellant s Letters Patent appeal was dismissed in limine
The High Court has accepted the respondent s contention that the date 9th of November 1963  mentioned in the notification was arbitrary
On behalf of the Revenue it was contended that the date 9111963 was selected because an earlier notification bearing No 110 had required applications to be made on or after 9111963
It was further contended that a statutory provision had necessarily to be arbitrary in the choice of date and it could not be challenged on that ground
On behalf of the respondent it was contended that the said date did not have any significance whatsoever and did not bear any rational relationship to the object sought to be achieved by the notification
PG NO 1051 PG NO 1052 Dismissing the appeal it was HELD 1
A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical
1056D 2
In cases where choice of the date is not material for the object to be achieved
the provisions are generally made prospective in operation
1056D 3
The Revenue has not been able to produce notification No l 10
Unless the nature and contents of notification No 110 and its relevance with reference to the present notification are indicated it is futile to try to defend of the choice of the date in clause a on its basis
1055A1056E 4
In the present case the benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause a of Proviso 3 the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification
1057F 5
Clause a of the Proviso 3 of the Notification was ultra vires and the benefit allowed by the Notification would be available to the entire group including the respondent
1057G Union of India vs Ms P Match Works 19752 SCR 573 Jagdish pandey vs The chancellor University of Bihar
19681 I SCR 237 and UP M T
SNA Samiti Varanasi vs State of UP19872 SCR 453 distinguished
Dr Sushma Sharma vs State of Rajasthan 1985 Supp
SCC 45 and DS Nakara vs Union of lndia 1983 I SCC 365 referred to