2023:BHC-NAG:12570 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO. 472 OF 20 23 State of Maharashtra, Through Sub-Divisional Police Officer, Washim .... PETITIONER // V E R S U S //

Madhuri Badrinarayan Gote, R/o. Amani, Tq. Malegaon, District Washim, at Present District Central Prison, Washim ... RESPONDENT --------------------------------------------------------------------------------------------------

Ms Mayuri Deshmukh, APP for the petitioner/respondent Mr S. S. Das, Advocate for the respondent --------------------------------------------------------------------------------------------------

CORAM : G. A. SANAP, J.

DATE : 11/08/2023 O R A L J U D G M E N T :

1 Heard.

2 Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties.

3 In this writ petition, filed by the State, challenge is to the order dated 18.05.2023 passed by the learned Additional Sessions Judge, Washim whereby the learned Sessions Judge rejected the application made by the Special Prosecutor. In this application Exh. 69, the prayer was made by the prosecution to reject the vakalatnama filed by the Advocate Mr More for the approver and to shift the respondent approver Madhuri Gote to Central Jail, Akola. The respondent herein referred to as ‘Approver’ was co-accused in crime No. 23/2020 registered at Police Station Washim City for the offences punishable under Sections 302, 364-A, 363, 201 & 120-B of the Indian Penal Code. The crime involved murder of 15 years old niece of the informant. The approver was accused No.2. The accused No.1 is the husband of the approver. As per the case of the prosecution, the minor girl was kidnapped, taken to secluded place, administered intoxicant and strangulated. The accused burnt the death body and destroyed the evidence. The investigation in the crime led to filing of the chargesheet against accused No.1 and the approver. Learned Magistrate committed the case to the Sessions Court for trial.

4 During the pendency of the case before the Sessions Court the approver made an application dated 30.11.2021 and expressed her desire to become an approver. The copy of this application, made by the approver, was provided to the learned Special Public Prosecutor, appointed for conducting the case. Learned Special Public Prosecutor thereafter made an application and prayed before the Court to tender pardon to the approver/

accused No.2.

5 The say of the approver was called by the learned Judge. The accused No.2 gave her say and agreed to become an approver and to narrate the true facts related to the crime, on oath before the Court. Learned Additional Sessions Judge, Washim by order dated 17.02.2022 rejected the application made by the approver as well as the subsequent application made by the learned Special Public Prosecutor.

6 The approver/accused No.2 being aggrieved by this order challenged the same before this Court. This Court (Coram: Vinay Joshi, J) set aside the order dated 17.02.2022 passed by the learned Additional Sessions Judge, Washim. This Court (Coram: Vinay Joshi, J) by way of consequential relief allowed the application made by the prosecution to tender pardon to the approver on condition of accused No.2 making a full and true disclosure of whole of the circumstances within her knowledge relating to the offence.

7 It is therefore apparent that from the date of this order, being an approver, accused No.2 became the witness for the prosecution. It is not out of place to mention that on the date of acceptance of an application of the approver and on tender of a pardon, the approver by deeming fiction gets discharged from the case. The approver then becomes the witness and does not remain an accused.

8 In this case, the charge was framed on 06.05.2021. The application to become an approver was made after framing the charge. Recording of evidence of prosecution witness No.1 commenced on 02.01.2023. By the time the impugned order was passed,