Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1925 OF 2008
State of Maharashtra … Appellant
Vs.
Abu Salem Abdul Kayyum Ansari & Ors. … Respondents
JUDGMENT
R.M. LODHA, J.
The question which this Court has to arrive at a conclusion in
this criminal appeal preferred by the State of Maharashtra under
Section 19 of the Terrorist and Disruptive Activities (Prevention) Act,
1987 ( for short ‘TADA Act’), is whether, the accused has a right to
cross examine an accomplice who has been tendered in evidence
by the prosecution as approver but later on pardon tendered to him
was withdrawn on a certificate of the Public Prosecutor under
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Section 308 of the Code of Criminal Procedure, 1973 (for short,
‘Cr.P.C.’) and he (approver) has not been further examined by the
prosecution as its witness.
2. The aforesaid question arises in this way. A certain
Pradeep Jain (builder) was allegedly eliminated by hired gangsters
on March 7, 1995 and his brother Sunil Jain was attempted to be
killed on that day for not succumbing to the pressure of parting with
their landed property situate in Mumbai A crime being CR No. 145
of 1995 was registered with D.N. Nagar Police Station, Mumbai.
After completion of investigation, initially few persons were arrested
and they were charge sheeted and tried for the offences punishable
under Sections 302, 307, 120B, 23, 114 IPC, Sections 3, 25(1B)(a),
5, 27 of the Arms Act and Sections 3(2)(i), 3(2(ii), 3(3), 3(5), 5, 6 of
TADA Act by the Judge, Designated Court, Mumbai. The present
respondents could not be tried as they were absconding. The Judge,
Designated Court, vide judgment dated August 5, 1997 acquitted
the accused who were tried. The State of Maharashtra carried
appeal in the matter before this Court and vide judgment dated July
11, 2001, this Court partly set aside the judgment of the Judge,
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Designated Court, Mumbai and convicted some of the accused who
were tried.
3. On September 18, 2002 Abu Salem Abdul Kayyum
Ansari (respondent No. 1) and one Monika Bedi were arrested in
Portugal. They were extradited and brought to India. The extradition
was granted for respondent no. 1 in respect of Pradeep Jain murder
case, Bombay Bomb Blast case and Ajit Diwani murder case. On
November 11, 2005, as soon as the respondent no. 1 was brought to
India, he was arrested by Central Bureau of Investigation (CBI) in
Bombay Bomb Blast case and later on he was taken into custody by
Anti Terrorist Squad, Mumbai in connection with Pradeep Jain
murder case. The respondent no.1 was charged along with Mohd.
Naeem Abdul Rahim Khan (respondent no. 2), Riyaz Ahmed
Siddique (respondent no. 3), Mohd. Hassan Mehendi Hassan
(respondent no. 4) and Virendrakumar Biharilal Jhamb (respondent
no. 5), having conspired in Dubai with few others to murder Pradeep
Jain and that in pursuance of this conspiracy, Pradeep Jain was
murdered on March 7, 1995. On April 28, 2006, the police submitted
charge sheet against the present respondent nos. 1 to 5 and
accordingly TADA Special Case No. 1 of 2006 began before the
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Court of Designated Bombay Blast Cases, Greater Mumbai (for
short, `Designated Court’) .
4. On July 3, 2006, the respondent no. 3 (Riyaz Ahmed
Siddique) addressed a letter to Assistant Commissioner of Police,
Anti Terrorist Squad (I.O.) expressing his desire to disclose truly and
fully the facts pertaining to conspiracy which had taken place at
Dubai in connection with the murder of Pradeep Jain.
5. On July 7, 2006 the Investigating Officer made an
application under Section 307 Cr.P.C. before the Designated Court
that the respondent no. 3 may be tendered pardon on his readiness
and willingness to disclose true and correct facts about the
conspiracy hatched by them for the murder of Pradeep Jain.
6. On July 18, 2006 the Designated Court tendered
pardon to the respondent no. 3 under Section 307 Cr.P.C. and
permitted the prosecution to examine him as witness in the trial. In
that order, the Designated Court noted that the approver is supposed
to depose true and correct facts pertaining to the crime and that he
(approver) has accepted the pardon with that condition.
7. On September 18, 2008, the respondent no. 3 (approver)
was called as witness for the prosecution; he went into the witness
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box to give evidence but after some time, he requested the Court to
adjourn the matter as he was observing Ramzan fast and feeling
weak. The next day i.e. September 19, 2008, further deposition of
approver began but the Special Public Prosecutor realized that
witness was not desirous of telling the Court about conspiracy that
led to the murder of Pradeep Jain. The Special Public Prosecutor put
a specific question to the approver as to whether he wanted to tell
the Court about the conspiracy of Pradeep Jain murder to which his
answer was in the negative. Immediately, the Special Public
Prosecutor issued a certificate under Section 308 Cr.P.C. that the
approver has not complied with the condition on which pardon was
tendered to him and, therefore, he may be tried separately. The
order dated September 19, 2008 to the extent it is relevant reads as
follows:
“ ……… The Id Spl. PP files certificate u/sec. 308 of
Cr.P.C. conveying that the approver witness Riyaz
Ahmed has committed breach of conditions of the
Pardon and the Pardon may be withdrawn and will be
tried for same offence separately . . . . . . . .”
The matter was then adjourned to September 23, 2008.
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8. On September 23, 2008, the Designated Court
passed the following order:
“………… Mr. Sudeep Pasbola requests the court to
allow him to cross examine the approver who is
certified by the Id. Spl. PP to have committed breach
of conditions of Pardon.
The Id. Spl. PP opposes the said request on the
ground that once the PP forfeits the pardon the
witness relegates back to the status of accused to be
tried separately for the same offence and as such
looses his status as witness of the prosecution,
therefore, his entire evidence though till be on record
but cannot be used for any purpose and as such the
question of cross examining such hostile witness by
other accused does not arise.
Mr. Pasbola submits that merely withdrawal of pardon
by the Id. Spl. PP is not sufficient to transpose
approver as an accused and his evidence so far
recorded cannot be taken away from record. It is not
law that if the witness does not support the prosecution
he is always telling lies. The witness may not support
the prosecution in the very language it wants and
therefore, the evidence recorded by the Court in the
proceedings cannot be wiped out.
Adv. Shri Pasbola has relied on 1978 Cr.L.J. NOC 126
Andhra Pradesh wherein the Hon’ble Court has
observed that accused are entitled to cross examine
the approver with regard to his statement u/sec. 162 of
Cr.P.C.
In the present case, the statement of approver i.e.
Riyaz Ahmed Siddiqui is not recorded after grant of
Pardon as Pardon is granted u/sec. 307 of Cr.P.C. by
a Sessions Judge and therefore, no question of
recording any evidence in Committal Court did arise.
However, the confessional statement of said witness
u/sec. 15 of TADA Act was also recorded after his
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arrest while his statement u/sec. 161 of Cr.P.C. was
also recorded. In ordinary course if the witness
becomes hostile the prosecution and the defence both
are entitled to cross examine him. The evidence of
hostile witness cannot be thrown away out right. The
court can use it in favour of prosecution or defence to
the extent it supports them and after weighing it can
accept it partially in favour of any of the parties to the
trial. Thus if the law says that the entire evidence of
hostile witness can not be ignored and still can be
used there is no reason to block the defence from
cross examining such witness who in view of
prosecution is of no value for it since he declines to
support the prosecution. Once the person enters into
the witness box as a witness the record of his
deposition remains to be recorded of evidence of
witness and as such accused is entitled to exercise his
rights conferred on him by virtue of Sec. 162 of Cr.P.C.
to contradict him with his previous statements. While
the prosecution can not do so even if its witness turns
hostile. The prosecution has only choice to bring
supporting material through the cross examination by
Id. Public Prosecutor. What action is to be taken
against the approver who commits breach of condition
of Pardon is to be decided later on as Sec. 308 of
Cr.P.C. says that such person may be either tried for
offence in respect of which the pardon was so
tendered or for any other offence which appears to
have been committed by him and also for giving false
evidence. So the stage to decide which mode is to be
adopted against such an approver is yet to come.
However, simply because prosecution disowned its
witness he does not loose a status of witness unless
prosecuted separately in view of provisions of Section
308 of Cr.P.C. and as such accused has every right
to cross examine such a witness. The question of
probative value of his evidence is distinct one.
However, in my opinion the defence has statutory right
to cross examine the hostile witness or approver and
as such accused in this case are entitled to exercise
the right by cross examining the witness Riyaz Ahmed
Siddiqui .”
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9. The State of Maharashtra is aggrieved by the above
order whereby permission has been granted to the defence to
cross examine the respondent no. 3.
10. Section 306 of Cr.P.C. makes a provision for tender of
pardon to accomplice. It reads as follows:-
“S.-306. -Tender of pardon to accomplice. –
(1) With a view to obtaining the evidence of any person
supposed to have been directly or indirectly concerned
in or privy to an offence to which this section applies,
the Chief Judicial Magistrate or a Metropolitan
Magistrate at any stage of the investigation or inquiry
into, or the trial of, the offence, and the Magistrate of
the first class inquiring into or trying the offence, at
any, stage of the inquiry or trial, may tender a pardon
to such person on condition of his making a 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.
(2) This section applies to –
(a) any offence triable exclusively by the Court of
Session or by the Court of a Special Judge appointed
under the Criminal Law Amendment Act, 1952 (46 of
1952).
(b) any offence punishable with imprisonment, which
may extend to seven years or with a more severe
sentence.
(3) Every Magistrate who tenders a pardon under sub-
section (1) shall record –
(a) his reasons for so doing;
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(b) whether the tender was or was not accepted by the
person to whom it was made,
and shall, on application made by the accused, furnish
him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made
under sub-section (1) –
(a) shall be examined as a witness in the court of the
Magistrate taking cognizance of the offence and in the
subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in
custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon
made under sub-section (1) and has, been examined
under sub-section (4), the Magistrate taking
cognizance of the offence shall, without making any
further inquiry in the case –
(a) commit it for trial –
(i) to the Court of Session if the offence is triable
exclusively by that court or if the Magistrate taking
cognizance is the Chief Judicial Magistrate;
(ii) to a court of Special Judge appointed under the
Criminal Law Amendment Act 1952 (46 of 1952), if the
offence is triable exclusively by that court;
(b) in any other case, make over the case to the Chief
Judicial Magistrate who shall try the case himself.”
11. Section 307 Cr.P.C. provides that at any time after
commitment of a case but before judgment is passed, the
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Court to which the commitment is made may, with a view to
obtaining at the trial the evidence of any person supposed to
have been directly or indirectly concerned in, or privy to, any
such offence, tender a pardon on the same condition to such
person.
12. Section 308 provides for the trial of the approver
who has accepted tender of pardon but fails to comply with the
condition of pardon. The said provision reads as under:-
“S. 308.- Trial of person not complying with
conditions of pardon.
(1) 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 willfully 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:
Provided that such person shall not be tried jointly with
any of the other accused:
Provided further that such person shall not be tried for
the offence of giving false evidence except with the
sanction of the High Court, and nothing contained in
section 195 or section 340 shall apply to that offence.
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(2) Any statement made by such person accepting the
tender of pardon and recorded by a Magistrate under
section 164 or by a court under sub-section (4) of
section 306 may be given in evidence against him at
such trial.
(3) At such trial, the accused shall be entitled to plead
that he has complied with the condition upon which
such tender was made, in which case it shall be for the
prosecution to prove that the condition has not been
complied with.
(4) At such trial the court shall-
(a) if it is a Court of Session, before the charge is read
out and explained to the accused;
(b) if it is the court of a Magistrate before the evidence
of the witnesses for the prosecution is taken,
ask the accused whether he pleads that he has
complied with the conditions on which the tender of
pardon was made.
(5) if the accused does so plead, the court shall record
the plea and proceed with the trial and it shall, before
passing judgment in the case, find whether or not the
accused has complied with the conditions of the
pardon, and, if it finds that he has so complied, it shall
notwithstanding anything contained in this Code, pass
judgment of acquittal.”
13. The salutary principle of tendering a pardon to an
accomplice is to unravel the truth in a grave offence so that guilt
of the other accused persons concerned in commission of
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crime could be brought home. It has been repeatedly said by
this Court that the object of Section 306 is to allow pardon in
cases where heinous offence is alleged to have been
committed by several persons so that with the aid of the
evidence of the person granted pardon, the offence may be
brought home to the rest. Section 306 Cr.P.C. empowers the
Chief Judicial Magistrate or a Metropolitan Magistrate to tender
a pardon to a person supposed to have been directly or
indirectly concerned in or privy to an offence to which the
section applies, at any stage of the investigation or inquiry or
trial of the offence on condition of his making a full and true
disclosure of the whole of the circumstances within his
knowledge relative to the offence. The Magistrate of the first
class, under Section 306, is also empowered to tender pardon
to an accomplice at any stage of inquiry or trial but not at the
stage of investigation on condition of his making full and true
disclosure of the entire circumstances within his knowledge
relative to the crime. Section 307 vests the court to which
the commitment is made, with power to tender a pardon to an
accomplice. The expression, ‘on the same condition’ occurring
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in Section 307, obviously refers to the condition indicated in
sub-section (1) of Section 306, namely, on the accused making
a 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. An accomplice who has been granted
pardon under Section 306 or 307 Cr.P.C. gets protection from
prosecution. When he is called as a witness for the
prosecution, he must comply with the condition of making a
full and true disclosure of the whole of the circumstances within
his knowledge concerning the offence and to every other
person concerned, whether as principal or abettor, in the
commission thereof and if he suppresses anything material
and essential within his knowledge concerning the commission
of crime or fails or refuses to comply with the condition on which
the tender was made and the Public Prosecutor gives his
certificate under Section 308 Cr.P.C. to that effect, the
protection given to him is lifted.
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1
14. In A.J. Peiris v. State of Madras , a 3 - Judge
Bench of this Court stated that the moment a pardon is
tendered to the accused he must be presumed to have been
discharged, whereupon he ceases to be an accused and
becomes a witness.
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15. In State v. Hiralal Girdharilal Kothari , with
reference to Sections 337 and 339 of the Code of Criminal
Procedure, 1898 (now Sections 306, 307 and 308 Cr.P.C.),
this Court stated that a pardon tendered under Section 337 is a
protection from prosecution; failure to comply with the condition
on which the pardon is tendered removes that protection.
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16. In State (Delhi Administration) v. Jagjit Singh , this
Court held as under:-
“8. ……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
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 cannot withdraw
the pardon from the approver nor the approver can
1
.AIR 1954 SC 616
2
AIR 1960 SC 360
3
1989 Supp (2) SCC 770
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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……..”.
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17. The above statement of law in Jagjit Singh cannot
be understood as laying down that an accomplice who has
been tendered pardon and called as a witness for prosecution
must be continued to be examined as a prosecution witness
although he has failed to comply with the condition on which
the tender of pardon was made and a Public Prosecutor
certifies that he has not complied with the condition on which
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the tender was made. As a matter of fact, in Jagjit Singh’s
case no certificate was given by the Public Prosecutor. The
legal position that flows from the provisions contained in
Sections 306, 307 and 308 Cr.P.C. is that once an accomplice
is granted pardon, he stands discharged as an accused and
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becomes witness for the prosecution. As a necessary corollary,
once the pardon is withdrawn or forfeited on the certificate
given by the Public Prosecutor that such person has failed to
comply with the condition on which the tender was made, he is
reverted to the position of an accused and liable to be tried
separately and the evidence given by him, if any, has to be
ignored in toto and does not remain legal evidence for
consideration in the trial against the co-accused, albeit such
evidence may be used against him in the separate trial where
he gets an opportunity to show that he complied with the
condition of pardon. As a matter of fact, it is for this reason
that a specific statement was made by the counsel for the State
of Maharashtra before us – a similar statement was made
before the Designated Court as well – that the evidence of
respondent no. 3 so far recorded shall not be used by the
prosecution in the present trial.
18. Section 114, illustration (b) of the Indian Evidence
Act, 1872 (for short, ‘Evidence Act’) provides that the Court
may presume that an accomplice is unworthy of credit, unless
he is corroborated in material particulars.
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19. Section 132 of the Evidence Act reads as follows:
“132. Witness not excused from answering on
ground that answer will criminate - 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 proceeding, 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 proved against him in
any criminal proceeding, except a prosecution for
giving false evidence by such answer.”
20. Section 133 of the Evidence Act provides that an
accomplice shall be a competent witness against an accused
person; and a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice.
21. Section 154 of the Evidence Act is as under:
“S.-154. Question by party to his own witness.- (1)
The Court may, in its discretion, permit the person
who calls a witness to put any question to him which
might be put in cross examination by the adverse
party.
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2. Nothing in this section shall disentitle the person
so permitted under sub-section (1), to rely on any part
of the evidence of such witness.”
22. Section 315 of Cr.P.C. makes an accused person
a competent witness for the defence and he may voluntarily
give evidence on oath in disproof of the charges made against
him or any person charged together with him at the same trial.
The said provision reads as follows:
“S.-315. Accused person to be competent witness -
(1) Any person accused of an offence before a
Criminal Court shall be a competent witness for the
defence and may give evidence on oath in disproof of
the charges made against him or any person charged
together with him at the same trial:
Provided that-
(a) he shall not be called as a witness except on his
own request in writing;
(b) his failure to give evidence shall not be made the
subject of any comment by any of the parties or the
court or give rise to any presumption against himself or
any person charged together with him at the same
trial.
(2) Any person against whom proceedings are
instituted in any Criminal Court under section 98, or
section 107, or section 108, or section 109, or section
110, or under Chapter IX or under Part B, Part C or
Part D of Chapter X, may offer himself as a witness in
such proceedings:
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Provided that in proceedings under section 108,
section 109 or section 110, the failure of such person
to give evidence shall not be made the subject or any
comment by any of the parties or the court or give rise
to any presumption against him or any other person
proceeded against together with him at the same
inquiry.”
In other words, Section 315 clearly lays down that an accused
cannot be compelled to give evidence except on his own request in
writing.
23. Article 20(3) of the Constitution protects an accused from
being called or compelled to be witness against himself.
24. We have referred to the aforesaid provisions of the
Evidence Act, Cr.P.C. and Constitution to indicate that none of these
provisions militates against the proposition that a pardon granted to
an accomplice under Section 306 or 307 Cr.P.C. protects him from
prosecution and he becomes witness for prosecution but on forfeiture
of such pardon, he is relegated to the position of an accused and his
evidence is rendered useless for the purposes of the trial of the co-
accused. He cannot be compelled to be a witness. There is no
question of such person being further examined for the prosecution
and, therefore, no occasion arises for the defence to cross examine
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him. The Designated Court seriously erred in treating the
respondent no. 3 (Riyaz Ahmed Siddique) hostile witness; it failed
to consider that the pardon granted and accepted by him was
conditional pardon inasmuch as it was on the condition of his
making a true and full disclosure of all the facts concerning the
commission of crime and once the pardon granted to him stood
forfeited, on the certificate issued by the Special Public Prosecutor,
he was relegated to the position of an accused and did not remain a
witness. In the circumstances, there was no justification to permit the
defence to cross examine the respondent no. 3 and to that extent the
impugned order cannot be sustained.
25. The appeal is allowed as indicated above.
……..……………….J.
(P. Sathasivam)
…………………
….J.
(R.M. Lodha)
OCTOBER 5 , 2010.
NEW DELHI .
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