Point of Law : Legal proposition, which can be crystallized from the discussion made herein above, is that -making a full and true disclosure of the whole circumstances within his knowledge, relating to the offence and to every other person concerned, whether as principal or abettor and such disclosure must be complete as to himself and as to any other person concerned as principal or abettor, is a condition precedent to tender pardon to an accused.

JUDGMENT :

This revision petition, under Sections 401/397 of the Code of Criminal Procedure, is directed against the order dated 24.12.2020, passed by the learned Special Judge, Assam, in Special Case No. 02/2017, under section 7/13 (1)(b)/13(2) of the Prevention of Corruption Act, read with section 109/120(B)/420/465/468/471/201 IPC. It is to be noted here that vide impugned order, dated 24.12.2020, the learned Special Judge, Assam, has rejected the petition No. 392/2020, filed by the petitioner -Dr. Mrigen Saikia, under section 5(2) of P.C. Act, read with section 306 Cr.P.C. for allowing him to become an approver in the said case.

2. The factual background, leading to filing of the present petition, is briefly stated as under:

“On 27/10/2016, Dr. Anshumita Gogoi had filed one FIR with the Officer-in-Charge of Dibrugarh Police Station to the effect that one Nabakanta Patir asked her to pay a sum of Rs. 10 lacs for the post of Dental Surgeon, selection of which was to be made by Assam Public Service Commission (APSC). Upon the said FIR the O/C, Dibrugarh Police Station had registered a case, being Dibrugarh P.S. Case No.936/2016, under section 7/13 (1)(b)/13(2) of the Prevention of Corruption Act, read with section 109/120(B)/420/465/468/471/201 IPC and carried out investigation. The investigation culminated in submission of part Charge Sheet on 04.01.2018, against as many as 24 accused, and thereafter, supplementary Charge Sheet was submitted against some more accused on 02.01.2019. The name of the present petitioner finds mentioned in Sl.No.73 of the Supplementary charge Sheet, laid under section 7/13(1)(a)(b)(d)(2) of P.C. Act read with section 463/468/471/477(A)/201 IPC. Upon the said charge sheets Special Case No. 02/2017, had been registered. Thereafter, to assist the investigating agency he has decided to become an approver and filed one petition, being petition No. 392/2020, under section 5(2) of the Prevention of Corruption Act read with section 306 of the Code of Criminal Procedure, before the learned Special Judge Assam. Thereafter, the learned Special Judge had referred the petition to prosecution asking it to submit its statements on the request of the accused. Then the prosecution side had filed an application for recording the statement of the accused under section 164 Cr.P.C., and accordingly the learned Special Judge has got the statement of the accused by the learned Addl. C.J.M., Kamrup (M) and furnished a copy of the same to the prosecution so as to enable it to furnish its statement/opinion upon the application of the accused/petitioner. After filing of opinion by the prosecution side and thereafter considering the same and also considering the statement of the petitioner under section 164 Cr.P.C., the learned Special Judge, Assam vide impugned order dated 24.12.2020, had rejected the prayer of the petitioner on the ground that the petitioner had failed to make true disclosure of the facts and also failed to make an inculpatory statement, and that the prosecution side will be able to establish its case easily with the help of other witnesses.”

3. Being highly aggrieved, the petitioner has approached this court by filing the present petition on the ground that the learned court below had passed the impugned orders without application of judicial mind and without considering the fact that the petitioner would be instrumental in conviction of the prime accused, and that the learned court below has failed to consider the fact that if the prosecution agrees that tender of pardon will be in the interest of a successful prosecution of the offenders whose conviction is not easy without the approvers testimony then the trial court has to agree in tendering pardon and that two similarly situated persons have already been granted pardon and made approver and it is the prosecution who has to decide who should be put in the witness box for ensuing a successful prosecution and that marshalling of evidence is essentially a