DAVE, J.—We are called upon to answer a question referred to us by the Division Bench of this Court by its order dated December 5,1985, as to whether an approver can be detained for indefinite period even when principal accused in the case has been released on bail.

2. Petitioner had filed an application under Sec. 439, Code of Criminal Procedure, before the Single Bench of this Court and on August 28, 1985, interim bail was granted to him under Section 482 Cr.P.C , since the petitioners only brother had expired there was none in the family to perform the rituals. The Court while granting bail under section 482 Cr.P.C. said in the order that application under Section 439 Cr.P.C, does not lie in a case where provisions of section 306 (4) (b) Cr.P.C. are attracted. However, jurisdiction could be invoked under Section 482 Cr.P.C. Accused was directed to surrender on October 28, 1985. On this day the application was pressed on merits and Honble Mehta J. in his order dated October 28, 1985, while again granting interim bail referred the case to a Division Bench as there were two views of this Court; one in the case of Ayodhya Singh vs. State of Rajasthan (1) and another in Dev Kishan v. State of Rajasthan (2). Thereafter, the matter went before the Division Bench and the Division Bench further referred the case before this larger bench as 3 different Judges had taken different views while interpreting the provisions about granting bail to the approver.

3. Mr. M.I. Khan, Public Prosecutor appearing on behalf of the State, opposed the bail application on the ground that an approver can never be enlarged on bail if he was not on bail at the time when pardon was granted to him. He referred to the provisions of section 306 (4), which run as under:

"S. 306 (4)-Every person accepting a tender of pardon made under subsection (l)-

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial."

He submits that clause (b) of sub-S. (4) of S. 306 is mandatory and accused has to be detained in custody until the termination of the trial if he was not already on bail. He submits that in Chapter XXXIII of the Code of Criminal Procedure, where the provisions as to bail and bail bonds have been incorporated under sec. 437 & 439 Cr.P.C., bail can only be granted to a person accused of an offence. It is submitted that while enacting the provisions of Section 439 Cr.P.C. the Legislature used different phraseologies in this Section it self. For grant of bail the words used are, that any person accused of an offence and in custody be released on bail but in sub-s. (2) for cancellation the words used are any person who has been released on bail under this Chapter, can be arrested and committed into custody, thus an approver, who is a witness and not an accused cannot be granted bail under the provisions of Section 439 Cr. P.C. but if he is already on bail, his bail can be cancelled under sub-s.—(2). It is submitted by Mr. Khan that apart from Section 439 Cr.P.C. there is no other provision in the Code of Criminal Procedure which empowers the court to grant bail to any person detained It is submitted that Section 482 Cr.P.C. can also not be pressed into service because Legislature has given a clear mandate in form of Section 306 (4) (b) that the approver shall be detained in custody until the termination of trial and in this view of the matter detention of the approver in jail cannot be brought under the purview of inherent powers under Section 482 Cr.P.C. and such case would not be covered to prevent an abuse of the process of the court or otherwise to secure the ends of justice. It is submitted that when the Legislature enacted Section 306 (4) (b), it was conscious of the fact that there is a public policy behind it. It is submitted that firstly, there is a safety of the approver himself be

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