The statutory mandate requiring an approver to remain in custody until the termination of a trial applies only to pardons granted before case commitment. For pardons granted under Section 307, the High Court may invoke inherent powers to admit an approver to bail, as the custodial bar is inapplicable.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to release the petitioner on bail, who became an approver under Section 307 of the Code of Criminal Procedure in connection with S.T. Case No.783 of 2022 corresponding to Sukhdeonagar P.S. Case No.238 of 2022 involving the offences punishable under Sections 302, 120B/34 of the Indian Penal Code as well as Sections 27, 35 of the Arms Act in exercise of the power under Section 482 of the Code of Criminal Procedure.

3. Learned counsel for the petitioner submits that the petitioner was accused of the said case. In his statement under Section 313 of the Code of Criminal Procedure, the petitioner stated that he wants to be an approver; subsequently, the petitioner herein, filed an application for pardon and such petition after being allowed, the petitioner became an approver. Vide order dated 09.08.2023, the petitioner was granted pardon under Section 307 of the Code of Criminal Procedure. It is next submitted that after the petitioner became the approver, he has been examined as Prosecution Witness No.26. It is then submitted that since the petitioner has turned as an approver, he is no more an accused person of the case. Therefore, it is submitted that Section 437 or Section 439 of the Code of Criminal Procedure cannot be pressed into service for releasing him on bail.

4. Relying upon the judgment of the Bombay High Court in the case of Danish Ali Jamaluddin Ahmed Vs. The State of Maharashtra through DCB CID, Mumbai 400 001 reported in 2023:BHC-AS:34991, learned counsel for the petitioner submits that in that case, the approver was granted bail by the High Court. It is also submitted that the trial is at the stage of argument now. Hence, it is submitted that the petitioner be admitted to bail.

5. Learned Spl.P.P. appearing for the State on the other hand submits that it is the mandate of Section 306(4)(b) of the Code of Criminal Procedure that the approver be detained in custody until the termination of the trial, unless he is already on bail. But Section 306(4)(b) of the Code of Criminal Procedure is applicable only in case of tender of pardon to an accomplice at the preliminary stage, by a Magistrate before commitment of a case but in this case, the pardon was tendered after commitment of the case in exercise of the power under Section 307 of the Code of Criminal Procedure. Hence, restriction of the detaining the approver in custody until the termination of the trial is not applicable to this case.

6. In support of his contention, learned Special Public Prosecutor relies upon the judgment of the Hon’ble Chhattisgarh High Court in the case of Rajkumar Sahu Vs. State of Chhattisgarh reported in 2020 SCC OnLine Chh 109 and submits that in that case, the Single Judge Bench of the Hon’ble Chhattisgarh High Court has observed in para-19 that since the mandate under Section 306(4)(b) of the Code of Criminal Procedure for continuation of the approver in custody till the termination of the trial, would not be applicable to tender pardon under Section 307 of the Code of Criminal Procedure, hence, the learned Sessions Judge would have jurisdiction to release such accused on bail, if found appropriate. It is next submitted that the petitioner could have approached the learned Sessions Judge concerned instead of filing this Criminal Miscellaneous Petition before this Court.

7. Having heard the rival submissions made at the Bar and after