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1977 Supreme(AP) 1
Andhra Pradesh High Court
Judges : CHENNAKESAVA REDDY, S.MADHUSUDAN RAO
Balwant Singh - Appellant
Versus
State C.B.I, S.P.E.New Delhi - Respondent
Decided On : 01-01-77
An approver is a person proposed to be examined by the prosecution as a witness within the meaning of Section 173 (4) Cr.P.C., and the failure to supply the statement of the approver to the accused results in the denial of their right to effective cross-examination and the exclusion of the evidence of the approver.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 173 (4) - APPROVER - STATEMENT RECORDED DURING INVESTIGATION - SUPPLY TO ACCUSED - FAILURE TO SUPPLY - EFFECT - RE-TRIAL.
Fact of the Case:
The accused were convicted of offences under the Prevention of Corruption Act and the Indian Penal Code. The main evidence against them was the testimony of an approver, P.W. 5, who had been tendered pardon under Section 8 of the Criminal Law Amendment Act, 1952. The accused challenged the convictions on the ground that they were not supplied with a copy of the statement recorded from P.W. 5 during the course of the investigation, as required by Section 173 (4) of the Code of Criminal Procedure (Cr.P.C.).
Finding of the Court:
The court held that an approver is a person proposed to be examined by the prosecution as a witness within the meaning of Section 173 (4) Cr.P.C. and that a statutory duty is cast on the police to supply, before the commencement of the trial, a copy of the statement recorded from the approver while he was an accused in the case. The court further held that the failure to supply the statement to the accused resulted in the denial of their right to effective cross-examination of the approver and that the evidence of the approver should be excluded.
Issues: 1. Whether an approver is a person proposed to be examined by the prosecution as a witness within the meaning of Section 173 (4) Cr.P.C.? 2. Whether the failure to supply the statement of the approver to the accused resulted in the denial of their right to effective cross-examination? 3. Whether the evidence of the approver should be excluded?
Ratio Decidendi: 1. The court interpreted Section 173 (4) Cr.P.C. broadly to include approvers as persons proposed to be examined by the prosecution as witnesses. The court reasoned that the purpose of the provision is to put the accused on notice of what he has to meet at the inquiry or trial, and that this purpose is equally applicable to approvers. 2. The court held that the failure to supply the statement of the approver to the accused resulted in the denial of their right to effective cross-examination. The court noted that the accused were entitled to cross-examine the approver with reference to his earlier statement, and that the failure to provide them with the statement prevented them from doing so. 3. The court held that the evidence of the approver should be excluded because the failure to supply the statement to the accused resulted in a violation of their right to a fair trial.
Final Decision: The court reversed the judgment of the trial court, set aside the convictions and sentences of the accused, and ordered a re-trial. The court directed that the earlier statement recorded from the approver be supplied to the accused before the commencement of the re-trial.
( 1 ) THE nub of the novel problem that is provoked or posed for resolution in this case is whether an approver ia a person proposed to be examined by the prosecution falling within the sweep of section 173 (4) cr. P. C and a statutory obligation is thereby cast on the prosecution under section 173 (4) Cr. P. C. to supply a copy of the former statement recorded from him during the course of the investigation while he was an accused person.
( 2 ) THE history of the cause and the commission of crime leading to the prosecution is this;
( 3 ) THE first accused in the case was the Commissioner of Police. Hyderabad during 1965. The second accused was the Sub-Inspector of police, Panjagutta Police Station, Hyderabad at the relevant period, He was tendered pardon under section 8 of the Criminal Law (Amendment) act 1952. and examined as approver. He has been examined by the prosecution as P. W. 5. The 3rd accused is a contractor and is a close friend of A-1.
( 4 ) A-L wanted to secure a plot of land in Banjara Hilly for constructing a house. D. W. 7 was the Deputy Commissioner of Police, Law and Order at that time. At his instance P. W. 5 searched and found a vacant piece of land opposite to the police out post. , Banjara Hills. It was occupied by hut dwellers. Agmaiah was the leader of these hut dwellers. P,w. 5 contacted the Patwari of Shaikpet village and learnt from him that the said plot was under Survey No. 129/55 and that the owner of the said plot was one Syed Shah Abdul Qader. P. W. 5 passed on the information to D. W. 7 Thereupon D. W. 7 questioned P. W. 5 whether it would be possible to get the hut dwellers evicted from the site and P. W 5 told D. W. 7 that it would not be difficult. D. W. 7 then told P. W. 5 that he would pass on the information to A-1 and thereafter let him enow further about it.
( 5 ) NOW a few lines about the title and extent of this piece of land. Survey No. 129/55 is of an extent of Ac. 3-26 guntas. This property was gifted by the Nizam of Hyderabad to Syed Shah Abdul Qader under ex. P. 2 dated 30-10-39. Qader employed Agmaiah as a watchman for the plot. Agmaiah was paid Rs. 5/- a month as wages. He was also given some amount for raising a hut on the plot. Subsequently it appears, some relations of Agmaiah also raised huts and were living there.
( 6 ) ON 15-9-1938, Qader executed a settlement deed in favour of his wife Fatima Sugra Saheba under fix. P-3. However, it appears in the revenue records necessary mutation was not made and Qader continued to be shown as Pattadar. Qader died on 27-9-1959. P Ws. 2 and 3 in the case are the sons of Qader.
( 7 ) TO resume the narrative, some time in August, 1975, A-1 and d. W. 7 visited the plot in Banjara Hilla. P. W. 5 was also presept and showed them the plot, As directed by D. W. 7, when P. W. 3 called agmaiah aside and spoke to him. Agamaiah told them that the owner of the plot was one Syed Shah Abdul Qader and that he was looking after the land as a watchman and he was paid Rs. 5/- per month. A-1 approved the plot and went away.
( 8 ) IN the first week of September, 1965, P. W. 5 was called to the house of A-l, by D. W. 7. At the house of A-1 they discussed the way. and means to pressurise Agraaiah to sell the plot of land as the owner p. W. 5 then contacted Agmaiah and pressed him to stand as a selle. He was taken to the house of A-1, 3 or 4 times Ultimately Agmaiah agreed to stand as the owner. On the assurance given by P. W. 5 that all help will he given to him in case of any trouble to him, Agamaiah agreed to stand as an owner and sell the land. P. W, 5 informed A-l about it and A-1 ditected him to meet P. W. 7 P. W. 5 accordingly went to D. W. 7. At that time A-4 was also present at the house of D. W 7. P. W. 5 told D. W. 7 that Agamaiah was willing to stand as a seller. But D. W. 7 suggested that unless there was a document of title in favour of Agamaiah in respect of the plot of land it would not be safe to take a sale deed from
