ORDER
R.K. Batta, J.
1. The State has come in appeal against judgment dated 4th March, 1997 passed by Additional Sessions Judge, Mapusa whereby the respondents were given benefit of doubt and acquitted of the charges under sections 143, 147, 148, 452, 323, 427, 302, 120-B and 109-B read with section 149 Indian Penal Code.
2. Learned Public Prosecutor Shri Lawande has urged before us that respondent No. 10 was granted pardon and was made approver against the other respondents, but he was never examined as an approver in the trial Court and, on the contrary, he was tried alongwith the other accused, as a result of which the entire trial has been vitiated in view of the provisions contained in sections 306 and 308 Criminal Procedure Code. He has placed before us the relevant details in this connection to which we shall make reference hereinafter. He has also placed reliance on judgment of the Apex
Court in State (Delhi Admn.) v. Jagjit Singh and judgment of the Division Bench of Gujarat High Court in State of Gujarat v. Ramasi Devasi Bhil alias Chakala, reported in 1991 Cri.L.J. 2801. We have also heard learned advocates Shri S.D. Lotlikar and Shri N. Sardessai on behalf of the respondents.
3. The brief facts which are necessary to decide the issue raised by Public Prosecutor Shri Lawande are that all the respondents have been arrested in connection with various offences including respondent No. 10 was arrested on 3rd September 1993. On 4th October, 1993 respondent No. 10 made confessional statement before Judicial Magistrate, First Class, Mapusa. The Police made a request to Judicial Magistrate, First Class, Mapusa, to permit respondent No. 10 to be approver in the case. Judicial Magistrate, First Class, Mapusa on 12th October, 1993 directed that an application for pardon be filed before Chief Judicial Magistrate, Panaji. Accordingly, respondent No. 10 filed an application before Chief Judicial Magistrate, who, recorded his statement and after recording his statement, granted pardon and permitted the respondent No. 10 to be made approver in the case. Thereafter charge-sheet was filed before Judicial Magistrate, First Class, Mapusa, who, without examining the approver, as required under section 306(4), committed all the respondents to stand trial before the Court of Sessions. The Additional Sessions Judge, Mapusa, remanded the matter to Judicial Magistrate, First Class, Mapusa with a direction to record the statement of the approver in terms of section 306(4) Criminal Procedure Code. When the statement of approver, respondent No. 10 was recorded by Judicial Magistrate, First Class, Mapusa on 11th January, 1995, approver respondent No. 10 had resiled from his statement. The matter was thereafter committed by Judicial Magistrate, First Class, Mapusa to the Court of Sessions. It appears that before the Court of Sessions the respondents had taken the plea that approver could not be tried alongwith them but the Public Prosecutor vehemently pleaded that since the approver had resiled from a statement recorded by Judicial Magistrate, First Class, Mapusa, under section 306(4), the respondent No. 10 approver should also be tried alongwith the other accused. The Additional Sessions Judge vide order dated 12th May 1995 directed that the respondent No. 10 approver be also charged and tried alongwith the other accused for various offences referred to above. After recording evidence, all the respondents were acquitted which acquittal has been challenged on the aforesaid ground urged before us by learned Public Prosecutor.
4. Sections 306 and 308 Criminal Procedure Code, deal with the tender of pardon and trial of person not complying with conditions of pardon. Section 306(4) gives a mandate that every person accepting a tender of pardon made under sub-section (1) shall be examined as a witness in the Court of Magistrate taking cognizance of the offence and in the subsequent trial, if any. Section 308 provides that upon Public Prosecutor certifying that in his opinion the approver has either wilfully concealed anything essential or by giving false evidence, not complied with the condition on which the tender of pardon was made, such person may be tried for offence in respect of which pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence. The proviso to section 308(1) Criminal Procedure Code lays down in clear terms that such persons shall not be tried jointly with any
of the other accused. In the case under consideration the approver was never examined as a witness in the trial Court, namely, the Sessions Court and relying upon his statement recorded under section 306(4) Criminal Procedure Code, before the Committing Magistrate, the Public Prosecutor had submitted that the approver be tried alongwith the other accused. The law on the subject has been laid down by the Apex Court in State (Delhi Admn.) v. Jagjit Singh (supra). In this case the approvers had resiled from their statements in the Court of the Committing Magistrate. The approver Jagjit Singh had moved an application before the Sessions Court that he could not be examined as a witness as he did not accept the pardon and did not support the prosecution version. This application was rejected by the trial Judge, against which a revision was filed before the High Court. The High Court dismissed the revision holding that the mandate of the law requiring that approver should be examined both before Committing Magistrate as well as during trial as a witness, is binding not only on the trial Court and the prosecution but also on the approver as well. When the matter came up before the Apex Court, the Apex Court held that it is because of the mandate under section 306 Criminal Procedure Code, the State cannot withdraw pardon from the approver nor the approver can cast away pardon granted to him till he is examined as a witness by the prosecution both in the committing Court as well as in the trial Court. It was further observed that the approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial Court and it is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, the approver be tried under section 308 Criminal Procedure Code, The Apex Court further observed that once accused is granted pardon under section 306 Criminal Procedure Code, he ceases to be an accused and becomes a witness for the prosecution and so long as the prosecution does not certify that he has failed to comply with the terms, he continues to be a witness for the prosecution and the prosecution is under an obligation to examine him as a witness both in the Committing as well as trial Court.
5. In view of the law laid down by the Apex Court it was thus absolutely necessary that the approver should have been examined as a witness against the other accused and he could not obviously be tried alongwith the other accused in view of sections 306 and 308 Criminal Procedure Code. The prosecution thus lost a valuable right and relevant evidence when the approver was not examined as a witness in the trial Court, which is mandatory under the law. The result is that the entire trial against the respondents stands vitiated and the impugned order of acquittal passed by the Additional Sessions Judge is required to be set aside.
6. For the aforesaid reasons we set aside the impugned order acquitting the respondents of the charges and direct a de novo trial of respondents 1 to 9 against whom charge shall be framed afresh and trial shall proceed with due compliance of the provisions contained under sections 306 and 308 Criminal Procedure Code.
The Appeal is accordingly allowed and the impugned order acquitting all the respondents is set aside. The respondents shall appear before the
learned Additional Sessions Judge, Mapusa on 28th January 1999. Records and proceedings with muddemal be returned to the Additional Sessions Judge, Mapusa expeditiously so as to reach by 25th January 1999. The accused were granted bail pending this appeal and the bail granted shall continue unless cancelled by learned Sessions Judge, Panaji, Additional Sessions Judge, Mapusa or Additional Sessions Judge to whom the case is made over.
7. Appeal allowed.