*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +Crl.P. No.2372 OF 2010 % 13-04-2010 # K. Ram Mohan Reddy ….Petitioner Vs. $ The State of AP., through CBI, Chennai rep. Spl. PP …. Respondent !Counsel for the Petitioner : Sri C.B. Ram Mohan Reddy Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: [1]. 2005 (1) ALT (Crl.) 170 (SC) 2. 2009 (3) ALT Crl.) 426 S.C 3.AIR 1998 Supreme Court 2821 HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.2372 OF 2010 Date:13.04.2010 Between: K. Ram Mohan Reddy …..Petitioner And: The State of AP., through CBI, Chennai rep. Spl. PP …..Respondent. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.2372 OF 2010 ORDER: 1. This petition is filed by the 9th accused who later became approver and gave evidence in the lower court as P.W.1 in S.C.No.178 of 2006 on the file of Principal Sessions Judge, Anantpur relating to offences punishable under Sections 147, 148, 201, 212, 302, 307, 324, 326, 327 IPC, Sections 25 (1B) (a) and 27 of the Arms Act and Sections 3, 4, 5 of the Explosive Substances Act. The petitioner is in custody since 12.2.2005 when he was arrested in this crime. The case pertains to murder of Paritala Ravindra at Anantapur. After the petitioner chose to become approver, the Sessions Court tendered pardon to him under Section 307 Cr.P.C subject to conditions. 2. The petitioner is seeking declaration that his detention is illegal and violation of personal liberty, in this petition. There is no dispute that S.C.No.178 of 2006 is still pending trial in the lower court. Prosecution evidence in that case was completed and the accused were examined under Section 313 Cr.P.C. There is no dispute that after examination of the accused, the prosecution filed additional list of witnesses who are four in number and their evidence is also over and the matter is now coming up before the lower court for further examination of investigating officer by recalling him , because one witness out of the additional list of witnesses turned hostile to the prosecution. It is contended that the petitioner as P.W.1 made full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as Principal or abettor in the commission thereof and that therefore, he has complied with condition relating to grant of pardon to him and that as consequence thereof the petitioner is entitled to be released from custody. According to the petitioner, he is in illegal custody of the State and it violates Article 21 of the Constitution of India. On the other hand, Standing Counsel for C.B.I attended that the petitioner is not entitled for release from custody until completion of trial in the lower court and until the Public Prosecutor certifies that the accused made ‘full and true disclosure’ as contemplated under Section 306 (1) Cr.P.C. There is no provision in law which prescribes the Public Prosecutor’s certificate about ‘true and full disclosure’ by the approver, as a condition precedent for release of the accused turned approver from custody. The accused is not at the mercy of the Public Prosecutor for his release when he turned as approver. The so-called certification by the Public Prosecutor is contemplated under Section 308(1) Cr.P.C., for trial of the approver for offence in respect of which pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter and also for the offence of giving false evidence. Section 308(1) Cr.P.C reads as follows: “Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence.” On reading of the above provision, it is clear that it contemplates certification by the Public Prosecutor in a negative fashion. In case he is of the opinion that the approver has either by wilfully concealing any thing essential or by giving false evidence not complied with the condition on which tender of pardon was made. The certification contemplated under Section 308 Cr.P.C is not a positive certificate for release of the accused, but such certification is in the negative fashion for the purpose of proceeding against the approver in trial for the main offence and also for other subsidiary offences including for giving false evidence in that matter. Therefore, the trial court need not wait for certification of the Public Prosecutor for the purpose of releasing the approver from custody. Further, certification by the Public Prosecutor as contemplated under Section 308 Cr.P.C., need not wait until completion of trial. If the Public Prosecutor is of the opinion and he is able to come such opinion that the approver wilfully concealed some thing essential or gave false evidence, the Public Prosecutor is at liberty to give the said certificate at any stage of the trial subsequent to examining the approver as prosecution witness during trial before the trial court. Of course, it is left to discretion of the Public Prosecutor about stage and timing of giving such certificate. But, certainly it is not a condition precedent for release of the accused who turned as approver. Section 306(4)(b) Cr.P.C., reads: “Every person accepting a tender of pardon made under Sub Section 1- (a) ----------- (b) shall, unless he is already on bail, be detained in custody until the termination of the trial” There is no corresponding provision in Section 307 Cr.P.C relating to detention in custody of the accused who was tendered pardon. It is contended by the petitioner’s counsel that Section 306(4)(b) Cr.P.C may not be and cannot be imported in Section 307 Cr.P.C., because the Parliament thought it fit not to read the said provision into Section 307 and that while interpreting statute, intention of the Legislature is to be primarily gathered from the language used. The petitioner’s counsel relies on decisions of the Supreme Court in State of Jharkhand v. Govind Singh[1] and State v. Parameshwaran Subramani[2] for this proposition. Further, placing reliance on A. Deivendran v. State of T.N[3] of the Supreme Court, it is contended by the petitioner’s counsel that in case pardon is granted under Section 307 to the accused after committal of case to the Court of Session, Section 306(4) is not applicable. Relevant passage of the Supreme Court on this aspect reads: “Under Section 307 when pardon is tendered after commitment of the proceedings by the Court to which the commitment has been made the legislative mandate is that the pardon would be tendered on the same condition. The expression "on the same condition" obviously refers to the condition of tendering a pardon engrafted in sub-section (1) of Section 306, the said condition being the person concerned on making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. sub-section (4) of Section 306 cannot be held to be a condition for tendering pardon. A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of sub- section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of sub-section (4) of Section 306 are not attracted. The procedural requirement under sub- section (4) (a) of Section 306 to examine the accused after tendering pardon cannot be held to be a condition of grant of pardon.” In the above reported decision, the question that fell for consideration before the Supreme Court was with regard to application of Section 306(4)(a) Cr.P.C to a case under Section 307 Cr.P.C. The Supreme Court did not consider much less it fell for consideration of the Supreme Court in the above reported decision as to whether Section 306(4)(b) Cr.P.C can be imported or applied to a case covered by Section 307 Cr.P.C. Therefore, the above reported decision is not helpful to the petitioner in this petition. When Section 307 Cr.P.C., is silent with regard to stage when the accused who was tendered pardon is entitled for release from custody, then that question falls for consideration before this Court. When there is no contra indication in Section 307 Cr.P.C., as to the stage when the approver is to be released from custody, this Court will be justified to take clue on this subject from other relevant and similar situations provided in the same statute. Section 306 Cr.P.C., deals with a case of tendering pardon to the accused who intends to turn as approver, (a) in a case triable by a Magistrate and (b) in a case exclusively triable by a Court of Session and which case is pending before the Magistrate for its committal to the Court of Session. Whereas Section 307 Cr.P.C deals with a situation when the case is pending before the Court of Session after its committal by the Magistrate. This Court is of the opinion that a case triable by a Magistrate is not in a way worse than a case exclusively triable by a Court of Session, in relation to gravity of the offences involved. In a case triable by the Magistrate, Section 306(4)(b) Cr.P.C., contemplates detaining the person accepting tender of pardon in custody until termination of trial, it cannot be said that the law intended to release the accused from custody even before termination of trial in a Sessions Case where tender of pardon was accepted by the accused in a Sessions Court after committal of the case. Therefore, on proper interpretation of Sections 306 and 307 Cr.P.C., provision under Section 306(4) (b) Cr.P.C has to be made applicable to a case arising under Section 307 Cr.P.C also. Of course, such detention of the accused in custody until termination of trial, is subject to bail already granted to such an accused. The petitioner was not granted bail either prior to tendering pardon or subsequent thereof. The petitioner’s recent application for bail in Criminal Petition No. 3593 of 2009 was dismissed by this Court on 15.06.2009. The petitioner’s previous petition under Section 482 Cr.P.C., in Criminal Petition No.7595 of 2008 for same relief as claimed in the present petition i.e., for declaring his detention as illegal, was dismissed by this Court on 11.02.2009. Subsequent to the said order, there is no change of circumstances, inasmuch as trial of the case is not completed. Therefore, this Court is of the opinion that this is not proper stage for directing release of A-9 from custody. Further, this Court holds that the petitioner’s detention in custody as on today is not illegal and is not violative of Article 21 of the Constitution of India. Thus, this petition fails and is accordingly liable to be dismissed. In the result, the petition is dismissed. ________________________________________ SAMUDRALA GOVINDARAJULU,J. Date:13.04.2010. Note: L.R. copy to be marked //By order// Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.P.NO.2372 of 2010 Date:13.04.2010 Gk. [1] 2005 (1) ALT (Crl.) 170 (SC) [2] 2009 (3) ALT Crl.) 426 S.C [3] AIR 1998 Supreme Court 2821