IMPORTANT POINT
If a literal approach is taken to read and understand the provisions contained in Sec. 306(4)(b) of the Cr.P.C., then it would lead to the extreme and inevitable consequence of the petitioner having to be detained in prison until such time as the absconding accused is apprehended and the split up trial as against him is thereafter finalised. There could be cases, where such an absconding accused who could be a very notorious criminal will have the wherewithal to escape apprehension by the Police authorities for quite a long time.

ORDER :

1. The prayer in the above petition styled as a bail application, filed under Sec. 482 of the Cr.P.C. is as follows:

“...... to release the petitioner on bail in S.C.No. 654/2018 on the files of the Sessions Court, Kasargod, arising out of Crime No. 38/2018 of Beckal Police Station, in the interest of justice.”

2. The petitioner herein has been implicated as accused No.4 in Crime No.23/2018 of Bekkal Police Station, which has been registered for offences punishable Secs.449, 302, 397 read with Sec. 34 of the I.P.C. The Police, after investigation, has filed final report/charge sheet in the abovesaid crime and after effecting committal proceedings, the case is now pending before the Sessions Court, Kasaragod, as Sessions Cases, S.C.No. 654/2018. Altogether there are 4 accused in the above case.

3. The brief of the prosecution case is that the accused persons, with their common intention to commit robbery and murder of the deceased Subaida, had trespassed into her house and have committed robbery and have murdered the deceased Subaida, while A-3 along with the petitioner herein (A-4) was waiting outside the house of the deceased. Further that the petitioner has been made an approver in the abovesaid case. That the petitioner has been arrested on 1.12.018 and has been under custody since then. That while the petitioner was undergoing detention, after his arrest and remand, the prosecution has filed Crl.M.P.No. 936/2018 of the Judicial First Class Magistrate's Court, Kasargod, seeking permission of the said court to declare the petitioner (A-4) to be approver to the case with tendering pardon for the abovesaid offences. That after compliance with the requisite provisions under Sec.306 of the Cr.P.C., the statement of the petitioner (A-4) was recorded as approver and final report has also been filed. Anx. A-1 is the copy of the order dated 7.4.2018 rendered by the Chief Judicial Magistrate's Court, Kasargod, on Crl.MP. No.936/2018. After considering the matter, the learned Magistrate has ordered in Anx. A-1 order that, in exercise powers under Sec.306 of the Cr.P.C., petitioner, who has been arrayed as A-4 in Crime No. 38/ 2018 of Bekkal Police Station, is granted pardon, subject to the following conditions:

“He will make a true and full disclosure of the whole of circumstances within his knowledge relating to the offence and every other person concerned, where as principal or abettor in the commission of said offence.”

4. Thereafter, the petitioner has filed regular bail application as Crl.M.P.No.3667/2019 before the Sessions Court, Kasaragod. The said regular bail application was dismissed by the Sessions Court, Kasargod, as per Anx. A-2 order dated 8.11.2018 holding that the petitioner has been made an approver by the order of the Chief Judicial Magistrate and that it is proposed by the Sessions Court to keep the petitioner in custody pending trial in the case. Further it was pointed out therein that the allegation in the case is that a woman living alone was murdered after robbing her gold ornaments and that the release of the petitioner is therefore at that stage is not feasible.

5. Sec. 306 of the Cr.P.C. deals with tender of pardon. Clause (b) of sub section (4) of Sec. 306 of the Cr.P.C. stipulates that every person accepting a tender of pardon made under Sec. 306(1), shall, unless he is already on bail, be detained in custody until the termination of the trial. The petitioner would contend that though it is so stipulated in clause (b) in sub section (4) of Sec.306 of the Cr.P.C. that the approver shall, unless he is already on bail, be detained in custody until the termination of the trial, it has been held in various decisions of this Court as in Saidevan Thampi & Anr. v. State of Kerala & Ors. reported in 2013 KHC 694 = ILR 2013 (4) Ker. 496 = 2013 (4) KLJ 611, that the prescription in Sec. 306 (4) (b) of the Cr.P.C. cannot be taken as an absolute prohibition or fetter and that in appropriate cases a vestige of discre