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Andhra Pradesh High Court
Judges : CHENNAKESAVA REDDY, MADHUSUDHAN RAO
Balwant Singh - Appellant
Versus
State C.B.I., S.P.E., New Delhi - Respondent
Decided On : 08-09-77
CRIMINAL PROCEDURE CODE - SECTION 173 (4) - APPROVER - STATEMENT - SUPPLY TO ACCUSED - SECTION 162, CRIMINAL PROCEDURE CODE - APPLICABILITY - CROSS-EXAMINATION OF APPROVER - RIGHT OF ACCUSED - EFFECT OF NON-SUPPLY OF STATEMENT - RETRIAL.
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 contended that the approver's statement recorded during the investigation was not supplied to them before the commencement of the trial, in violation of section 173 (4) of the Criminal Procedure Code. They also argued that the approver could not be cross-examined with reference to his earlier statement, as it was inadmissible under section 162 of the Criminal Procedure Code.
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) of the Criminal Procedure Code, 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 accused had been denied the valuable right of effective cross-examination of the approver, and that the evidence of the approver therefore ought to be excluded altogether for the breach of the proviso to section 162 of the Criminal Procedure Code.
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) of the Criminal Procedure Code? 2. Whether the accused had been denied the valuable right of effective cross-examination of the approver? 3. Whether the evidence of the approver therefore ought to be excluded altogether for the breach of the proviso to section 162 of the Criminal Procedure Code?
Ratio Decidendi: 1. The court held that the word "proposes" in section 173 (4) of the Criminal Procedure Code connotes only an intention to examine, and that the prosecution may abandon that intention at any time and may not examine. However, the court held that there was no such option left for the prosecution in the case of an approver, as the prosecution was bound to examine the approver under section 337 (2) of the Criminal Procedure Code. 2. The court held that the accused had been denied the valuable right of effective cross-examination of the approver, as the earlier statement recorded from the approver during the course of the investigation was not supplied to the accused before the commencement of the trial. The court held that this was a breach of the proviso to section 162 of the Criminal Procedure Code, which provides that a statement made by an accused person is not admissible in evidence against him, except for the purpose of contradicting him. 3. The court held that the evidence of the approver therefore ought to be excluded altogether for the breach of the proviso to section 162 of the Criminal Procedure Code. The court held that there was no other evidence in the case on which the conviction of the accused could be sustained.
Final Decision: The court reversed the judgment of the learned Special Judge, set aside the convictions and sentences of the accused, and ordered a re-trial of accused Nos 1 and 3. The court further directed that the earlier statement recorded from the approver P. W. 5 during the course of the investigation by Mr. Roberts 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 is a person proposed to be examined by the prosecution falling within the sweep of section 173 (4), Criminal Procedure code, and a statutory obligation is thereby cast on the prosecution under section 173 (4) Criminal Procedure Code, 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-1 wanted to secure a plot of land in Banjara Hills 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 of 1955 and that the owner of the said plot was one Syed Shah Abdul Qader. P. W. 5 passed on the information td 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 know further about it.
( 5 ) NOW a few lines about the title and extent of this piece of land. Survey no. 129 of 1955 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 30th October, 1939. Qader employ ed 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 aad were living there.
( 6 ) ON 15th September, 1938, Qader executed a settlement deed in favour of bis wife Fatima Sugra Sahebs under ex. P 3. However, it appears in the revenne records necessary mutation was not made and Qader continued to be shown as Pattadar. Qadar died on 27th september, 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 Hills. P. W. 5 was also present and showed them the plot. As directed by d. W. 7, when P. W. 5 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. approved the plot and went away.
( 8 ) IN the first week of September, 1965 p. W. 5 was called to the house of A-1, by D. W. 7. At the house of A-1 they discussed the way, and means to pressurise Agmaiah to sell the plot of land as the owner. P. W. 5 than contacted Agmaiah and pressed him to stand as a seller. 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 be given to him in case of any trouble to him, Agmaiah agreed to stand as an owner and sell the land. P. W. 5 informed A-1 about it and A-1 directed him to meet D. 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 Agmaiah was willing to stand as a seller. But D. W. 7 suggested that unless there was a document of title in favour of Agmaiah in respect of the
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