The court clarified the applicability of Section 306(4)(b) of the Code to the Magistrate and Sessions Judge granting pardon, and exercised its inherent jurisdiction under Section 482 to release the petitioner on bail as a witness after being discharged from the case.

JUDGMENT

Sanjay K Agrawal, J. - Proceedings of this matter were taken for final hearing through video conferencing.

2. Can this Court in exercise of its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (for short, ''the Code'') admit the privilege of bail to the petitioner (accused turned approver) who has been granted pardon under Section 306(1) of the Code, during the pendency of trial by the jurisdictional Magistrate in view of the legislative bar engrafted under Section 306(4)(b) of the Code is the short question which has fallen for consideration in this petition on the following background: -

3. The petitioner along with other co-accused persons were arraigned in the FIR dated 29-6-2016 registered for offence punishable under Section 420 read with Section 34 of the IPC along with Section 10 of the Chhattisgarh Protection of Interest of Depositors Act, 2005. Accordingly, they were charge-sheeted before the jurisdictional Magistrate. The petitioner''s application for anticipatory bail was rejected by this Court in M.Cr.C.(A)No.1127/2016 on 5-1-2017. Thereafter, he was arrested on 28-3-2017 and thereafter, his regular bail application was also rejected by this Court in M.Cr.C. No.3282/2017 on 13-11-2017 and his Special Leave Petition (Crl.) Diary No.6942/2019 was also rejected by the Supreme Court on 11-3-2019 with a direction to conclude the trial within one year from that day.

4. The petitioner made an application for grant of pardon under Section 306(1) of the CrPC stating that he wanted to make full and complete disclosure of the case in which is an accused. The learned Judicial Magistrate First Class by its order 17-2-2020 granted that application on the condition of his making a full and true disclosure of the whole of the circumstances within within his knowledge relative to the offence and directed the case to be committed to the Court of Chief Judicial Magistrate under clause (b) of sub-section (5) of Section 306 of the Code. Thereafter, the petitioner made an application for bail stating that since he has already been granted pardon and he has accepted the conditions of pardon, therefore, his status has been changed to that of a witness from accused and since he is in custody since 28-3-2017, therefore, he be released on bail. The learned jurisdictional Magistrate by order dated 16-4-2020 rejected the application holding that the petitioner is already not on bail and is in custody and therefore he cannot be released on bail until the termination of trial in view of the legislative bar engrafted under clause (b) of sub-section (4) of Section 306 of the Code. Thereafter, this petition under Section 482 of the Code has been preferred by the petitioner invoking the inherent jurisdiction of this Court stating inter alia that Section 306(4)(b) of the Code cannot be taken as an absolute bar or prohibition or fetter on the inherent power of this Court under Section 482 of the Code and since the petitioner has been granted pardon under Section 306(1) of the Code and thereby he has occupied the status of a witness, Sections 437 and 439 of the Code are not available to release him on bail being inapplicable and further, since he is in custody for more than three years and he has unnecessarily been detained in jail and on account of COVID-19, he has not been examined till now, and trial has not been concluded despite the imperative direction of the Supreme Court therefore, in exercise of inherent power, he be released on bail by granting this petition.

5. The State / respondent has filed its reply opposing the application for anticipatory and regular bail, as in view of the legislative bar contained in clause (b) of sub-section (4) of Section 306 of the Code and only in exceptional cases, the approver / petitioner can be released on bail in exercise of power conferred under Section 482 of the Code and therefore the petitioner is not entitled to be released on bail, as he has failed to demonstrate