The court ruled that the revocation of pardon granted to an approver is not automatic upon issuance of the Public Prosecutor's certificate; it requires a prima facie determination of violations.

CAV ORDER

In the present Criminal Revision Petition, the following questions arise for consideration:

(i) Whether the certificate issued by the Public Prosecutor under Section 308 (1) of the Code of Criminal Procedure , would result in automatic cancellation/forfeiture of the pardon tendered under Section 306 of the Code?

(ii) Whether examination of the accused turned approver under Section 306 (4) of the Code of Criminal Procedure is mandatory in case the pardon is tendered by the Special Court which is competent to take cognizance of the offence and to try the accused?

(iii) Whether the respondent has violated the terms and conditions of the pardon?

2. Criminal Revision Petition is filed assailing the order dated 07.11.2022, passed in Crl.Misc.No.7811/2022, by which the petitioner’s application under Section 308 of the Code of Criminal Procedure (‘Code’) to prosecute the respondent of this petition (the accused No. 4 in RC 07(A)/2016) was rejected.

3. The application under Section 308 of the Code, filed in Spl.C.C.No.17/2017 on the file of the XXI Sessions Judge & Principal Special Judge for CBI Cases, Bengaluru, is numbered as Crl.Misc.No.7811/2022.

4. The petitioner, the Central Bureau of Investigation, filed the aforementioned application to prosecute PW-1 (accused No.4 turned approver) for not having complied with the terms and conditions of the order granting pardon.

5. The XVII Additional Chief Metropolitan Magistrate, Bengaluru, on 23.08.2016, had recorded the confession statements of accused No.4 under Section 164(1) of the Code. The respondent, during the course of the investigation, volunteered to be approver and sought pardon. On an application under Section 306 of the Code, the Special Judge granted pardon to the said accused, subject to the condition that accused No.4 should make a full and true disclosure and depose the truth before the Court.

6. The respondent (who was by then cited as CW-9 in the charge sheet) was examined as PW-1 by the prosecution. Witness was cross-examined by the remaining accused.

7. When the case was posted for final arguments, the Public Prosecutor filed an application under Section 308 (1) of the Code to prosecute the respondent, alleging that the approver has given false evidence and violated the terms of the pardon. The respondent contested the application.

8. The Trial Court framed two points for consideration as follows:

(i) Whether the prosecution establishes that the respondent has not complied with the terms of the pardon?

(ii) What order?

9. The Trial Court, after hearing both sides, dismissed the petition.

10. Initially, the application under Section 308 (1) of the Code was not accompanied by a Public Prosecutor’s certificate, and the respondent opposed the application on that count. Subsequently, the Public Prosecutor’s certificate was filed, and the Court proceeded to hear the matter, holding that the defect was cured. The Trial Court was right in holding that such an omission is curable.

11. The Special Court considered the statement of PW-1 and concluded that the respondent had not violated the terms of the pardon. Hence, the prosecution is before this Court assailing the said order.

12. Before going into the merits of the petition, it is necessary to record certain facts:

(a) The prosecution had registered an FIR in R.C.No.07(A)/2016 on 17.03.2016 against Shri Visweswara Bhat and Shri V.Prem Kumar and Sri. K.R. Somasunder, the Superintendents of Customs at the Import Section of Customs at Bengaluru International Airport. The case was registered for offences under Sections 7, 8, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (