Holding

The prosecution is mandated to examine an approver who has accepted a pardon as a witness in both the committing magistrate’s court and the trial court, even if he later resiles from his statement, unless the public prosecutor certifies a breach of the pardon conditions.

Summary

In May 1985 a series of bomb explosions led to FIR No. 238 of 1985 in Delhi, where Jagjit Singh and another accused were granted pardon under Section 306 of the Criminal Procedure Code and turned approvers. Both gave statements in the committal proceedings but later withdrew them, and the same accused were also charged in four other related cases transferred to Delhi for joint trial. Jagjit Singh contended that, being an accused in those other cases, he could not be examined as a witness in the original case, prompting the Delhi High Court to prohibit his examination as an approver. The State appealed, arguing that Section 306 obliges the prosecution to examine an approver who has accepted a pardon, regardless of subsequent resiliation, unless the public prosecutor certifies non‑compliance. The Supreme Court held that acceptance of a pardon converts the approver into a witness, and the prosecution must examine him in both the committing magistrate’s court and the trial court, with Section 132 of the Evidence Act shielding him from self‑incrimination. Consequently, the High Court’s order was set aside and the appeal allowed.

Issues considered

Whether an approver who has accepted a pardon under Section 306 can refuse to be examined as a witness after resiling from his earlier statement.
Whether the State may withdraw the pardon or the approver may cast it away before examination.
Whether Section 132 of the Indian Evidence Act protects an approver from self‑incrimination in such circumstances.

Legislation cited

Code of Criminal Procedure, 1973s. 306, s. 308
Indian Evidence Act, 1872s. 132

Subjects

approverpardonSection 306witness examinationself-incriminationCriminal Procedure CodeIndian Evidence Actresiling statement

Judgment

STATE (DELHI ADMN.)
A
v.
JAGJIT SINGH

DECEMBER 16, 1988

[B.C. RAY AND N.D. OZHA, JJ.] B

Criminal Procedure Code, 1973: Section 306--Person accepting
tender of pardon-To be examined as witness i~ Court of Magistrate
taking cognizance of offence as well as trial Court-Person resiling
from earlier statement-Liability to be examined not absolved.

Many explosions took place in May 1985 in Delhi and Uttar c
Pradesh killing many persons. Consequently, a number of cases were
registered. In Delhi, FIR No. 238 of 1985 was registered wherein the
respondent and another accused turned approvers and were granted
pardon under section 306 of the Code of Criminal Procedure, 1973.
Both these approvers however resiled from their statements in the D
Court of the Committing Magistrate.

Four Criminal cases pending in Meerut were later transferred by
the Supreme C9urtto the Court of the Chief Metropolitan Magistrate,
Delhi, to be tri~d along with the case arising out of FIR No. 238of1985.
E
In the supplementary committal proceedings in case FIR No. 238
of I 985, the respondent objected to his being summoned as an approver
on the ground inter alia that he could not be examined as a witness in the
case because he was figuring as an accused person in the other four
cases on the same facts and circumstances, which were being jointly
tried. The Chief Metropolitan Magistrate dismissed the application. F
The High Court allowed the respondent's revision petition and directed
l
the State not to examine the respondent as an approver in case F.I.R.
No. 238 of 1985.

In the appeal before this Court, it was inter alia contended that
the prosecution could not examine the respondent as a witness because G
he had cast away the pardon granted to him.

Allowing the appeal,

HELD: I. The pardon granted to the respondent was accepted by
"° · him and he was examined as a prosecution witness in the Court of the H
1093
1094 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A Committing Magistrate, though he resiled from his statement there. [I097C]

i. It is a mandate of the provisions of the Criminal Procedure
Code to the prosecution to examine the approver to whom pardon had
been granted as a witness both in the Committing Court as well as}n the
trial court. fl097E]
B
J. Section 306 clearly enjoins that the approver who was granted
pardon had to comply with the condition of making a full and true
disclosure of the whole of the circumstances within his knowledge rela-
tive to the offence and to every other concerned whether as principal or
abettor, in the commission thereof. It is because of this mandate that
the State cannot withdraw the pardon from the approver nor the
c approver can cast away the pardon granted to him, till he is examined
a' a witness by the prosecution both in the Committing Court as well as
in the trial court. fi097H; !098A-B]

-1. The respondent who has been granted p·ardon in case F.I.R.
D No. 238 of i 985 has to be examined by the prosecution in the trial court
no matter that he has resiled from his earlier statement and tried to
conceal what was within his knowledge with regard to the offence in
qnestion. !HOOD]
...
In re: Arusami Goundan, AIR 1959 Mad. 274 and Emperor v.
E Shandino Bhaniperto, AIR 1940 (Sind) ll4 referred to.

5. Once an accused is granted pardon under section 306, he ceases
to be an accused and becomes a witness for the prosecution. So long as
the prosecution does not certify that he has failed to make a fuU and true
disclosure of the whole of the circumstances within his knowledge relat-
F ing to the offence, he continues to be a witness and the prosecution is
under obligation to examine him as a witness both in the Committing
Court as well as in the trial court. fl099H; llOOA-B]

A.J. Peiris v. State ofMadras, AIR 1954 (SC) 616 referred to.

G 6. A witness is legally bound to answer any question which is
relevant to the matter in issue even if the answer to such question is
likely to incriminate him directly or indirectly. fllOOG]

7. The proviso to section 132 of the Indian Evidence Act clearly
protects a witness from being prosecuted on the basis of the answers
H given by him in a criminal proceeding which tend to criminate him
directly or indirectly. [llOIA] .
STATE v. JAGJIT SINGH [RAY, J.] 1095

8. The apprehension of the respondent that his evidence as ap- A
prover will be used against him in the other fonr criminal cases where
he figures as an accused was without any basis. On the other hand, he
was absolutely protected from criminal prosecution on the basis of the
evidence to be given by him when examined by the prosecution as an
approver. [llOIB-C)
B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 640 of 1988.

From the Judgment and Order dated 27.4.1987 of the Delhi High
Court in Crl. Rev. No. 221of1986.

B. Datta, Additional Solicitor General, Kitty Kumar Mangalam
c
and Miss A. Subhashini for the Appellant.

Hardev Singh and R. K. Agnihotri for the Respondent.

The Judgment of the Court was delivered by D

., RAY, J. Special leave granted. Heard learned counsel for the
parties.

The prosecution case, in short, is that to create fear and terror,
to commit murder and to aggravate tense situation some persons E
hatched a conspuacy to massacre the general public by placing transis-
tor bombs at public places and also by placing them in public -trans-
ports as trains, buses etc. Many explosions took place .in May 1985 in
Delhi and parts of Uttar Pradesh in consequence whereof many
persons were killed in Delhi and some places in Uttar Pradesh. Several .
cases were registered in different police stations of Aligarh, F
Ghaziabad, Meerut and Khekra etc. In Delhi F.I.R. No. 238 of 1985
• was registered i.e. State v. Kartar Singh Narang etc. wherein all the
accused persons named therein were arrested except one Gurdeep
·singh Sehgal who was declared as a proclaimed offender. The accused
1agjit Singh and Gurvinder Singh turned approvers and they were
granted pardon under Section 308 of the Code of Criminal Procedure, G
1973. They were examined as P.W. I and P.W. 2 in the committal case
proceeding in the court of Chief Metropolitan Magistrate on
December 24, 1985. Both these approvers resiled from their state-
ments in the court of the Committing Magistrate. The accused persons
were committed to the Court of Sessions to stand their trial for
offences under Sections 121, 121A, 153, 153A, 302 and 307 I.P.C. and H
1096 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

sections 3, 5 and 6 of Explosives Substances Act. r
A
On February 27, 1986, Surjit Kaur, another accused in the
Transistor Bomb Case, against whom cases 'were pending in the
Meerut, Ghaziabad and Aligarh Districts of U.P., moved an applica-
tion under Section 406 of the Code of Criminal Procedure before this
Court for transfer of criminal case pending in the court of Meerut to a
court in Delhi. This Court after hearing Counsel for the State of Uttar
Pradesh has directed that criminal cases referred to at Serial Nos. 1, 2,
3 and 5 in paragraph 2 of the transfer petition stand transferred to the
Court of the Chief Metropolitan Magistrate, Delhi and shall be tried
along with the case instituted in the Court of the Chief Metropolitan
Magistrate, Delhi arising out of F.I.R. No. 238 of 1985 of Police
c Station, Patel Nagar, New Delhi. When the matter was taken up in the
Court of Sessions, the respondent, Jagjit Singh, the approver moved
an application that he cannot be examined as a witness as he had not
accepted the pardon and did not support the prosecution version and
he was forced to make a wrong statement by the police before the
D Metropolitan Magistrate. The application was rejected by the Trial
Judge after hearing the arguments of the parties on March 1, 1986.

Against this order, a Criminal Revision Petition No. 92 of 1986
was filed by the respondent, Jagjit Singh in the High Court at Delhi.
This application was heard by J agdish Chandra, J who dismissed the
E petition on August 12, 1986 holding that the mandate of the law re-
quiring that the approver shall be examined both before the Commit-
ting 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.

Thereafter, one of the accused persons who was a proclaimed
F offender was arrested and a supplementary challan was filed in the
Court of )\1etropolitan Magistrate, Delhi. The respondent, Jagjit
Singh was sought to be examined as an approver by the prosecution, in .-
the said supplementary committal proceeding in F.I.R. No. 238 of
1985. The respondent objected to his being summoned as an approver
on the ground inter a/ia that he cannot be examined as a witness in a
G case though he is figuring as an accused person in other five cases on
the same facts and circumstances which are being jointly tried. The
Chief Metropolitan Magistrate, Delhi dismissed the application by his
order dated October 6, 1986. Against this order the ,respondent, Jagjit
Singh filed Criminal Revision Petition No. 221of1986. M.K. Chawla,
J after hearing the parties allowed the Revision Petition and directed
H the State not to examine the respondent-approver as an approver in
case F.I.R. No. 238 of 1985.
.~~<+K~~'~·c~~·J
·~~!
'too•

STATE v. JAGJIT SINGH [RAY, J.J 1097

Aggrieved by this order this appeal by special leave has been .A
filed by State.

It has been urged that the statement recorded under Section· 164
of the Code of Criminal Procedure was not made by the respondent,
Jagjit Singh voluntarily but it was obtained under coercion by the
police. It has also been contended that he resiled from his statements B
in the court of the Committing Magistrate and he has not accepted the
pardon granted to him by the Magistrate. He should be arrayed as an
accused in the case F.I.R. No. 238/85 and should be tried as an accused
along with other accused in the said case. This contention is not
tenable in as much as the pardon granted to the respondent, Jagjit
Singh was accepted by him and other approver, Gurvinder Singh who C
were examined as P. W. 1 and P. W. 2 in the court of the Committing
Magistrate. Tnese approvers, of course, resiled from their statement in
the court of the Committing .Magistrate. It has therefore, been submit-
ted that the prosecution cannot examine him as a witness in the said
case as he has cas(away the pardon granted to him. This submission, in
our considered opinion, is not tenable in as much as sub-section (4) 'of D
Section 306 of Code of Criminal Procedure clearly enjoins that a
• person accepting a tender of pardon has to be examined as a witness in
the court of the Magistrate taking cognizance of the offence and in the
· subsequent trial, if any. It is therefore, a mandate of the provisions of
the said Act to the prosecution to· examine the approver to whom
pardon has been granted as a witness both in the Committing Conrt as E
well as in the trial court. It does not matter whether the approver has
resiled from his statement and has not made a full and true disclosure
of whole of the circumstances within his knowledge relating to the
offence so long as the Public Prosecutor does not certify that in his
opinion the approver has either wilfully concealed anything essential
or has given false evidence contrary to the condition on which the F
tender ~f pardon was made.

It has been next contended that the grant of pardon is in the
nature of. a contract between the State granting the pardon on the one
hand and the person accepting the pardon on 're other hand. As the
State has the power fo revoke the pardon at any time the approver has G
also got the reciprocal right to cast away the pardon granted to him.
This submission is also not tenable. The power to grant Jlardon carries
with it the right to impose a condition limiting the operation of such a
pardon. Hence a pardoning power can attach any condition, precedent
or subsequent so long as it is not illegal, immoral or impossible of
performance. Section 306 clearly enjoins that the approver who was H
1098 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
r
A granted pardon had to comply with the condition of making a full and
true disclosure of the whole of the circumstances within his knowledge
relative to the offence and to every other concerned whether as princi-
pal or abettor, in the commission thereof. It is because of this man-
date, the State can not withdraw the pardon from the approver nor the
approver can cast away the pardon granted to him till he i~ examined
B as a witness by the prosecution both in the Committing Court as well as
in the trial court. The approver may have resiled from the statement
made before the Magistrate in the Committing Court and may not
have complied with the condition on which pardon was granted to him,
still the prosecution has to examine him as a witness in the trial court.
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
c concealing anything essential or by giving false evidence, he may be
tried under section 308 of the Code of Criminal Procedure not only for
the offence in respect of which pardon was granted but also in respect
of other offences. In these circumstances, the question of casting away
the pardon granted to an approver and his claim not to be examined by
D the prosecution as a witness before the trial court is without any sub-
stance. It has been submitted in this connection by citing a decision In
re Arusami Goundan, AIR 1959 (Madras) 274 that the accomplice who •
has been tendered a pardon if at any stage either wilfully conceals
material particulars or gives false evidence and thereby fails to comply
·with the conditions on which pardon was tendered to him and thereby
E incurs its forfeiture he should not be compelled by the prosecution to
be examined as a witness before the trial court. It has been observed
even in the said case that the provisions of Section 337(2) of the old
Code of Criminal Procedure, 1898 (5 of 1898) provide that the
approver who has been tendered pardon must be examined both in the
Committing Court and the Court of Sessions. It has been held that:
F
"The obligation to make a full and true disclosure would
,.
arise whenever the approver is lawfully called upo~ to give
evidence touching the matter; it may be in the Committing
court, or, it may be in the Sessions Court. But, the obliga-
tion to make a full and true disclosure rests on the approver
G at every stage at which he can be lawfully required to give
evidence. If at any stage he either wilfully conceals material
particulars or gives false evidence he would have failed to
comply with the conditions on which the pardon was
tendered to him and thereby incurred its forfeiture.

H Neither as a matter of reason or logic, nor as a matter
' -t>· ~:

~----·
,;.;

STATE v. JAGJIT SINGH [RAY, J.] 1099.

of statutory interpretation can it be said that S. 339(1) is
A
dependent on or connected with S. 337(4) in the sense that
the approver must be examined both in the Committing
Court and the Sessions Court before it can be held that he
has forfeited his pardon. It is sufficient if he fails to conform
to the conditions on which the pardon has been granted to
him at either stage." B

This decision has been considered in Emperor v. Shandino
Dhaniparto, AIR 1940 (Sind) 114wherein it has been held that:

"When an accused after accepting pardon denies all
knowledge of facts before the Committing Magistrate and C
the case is committed to Sessions Court the pardon cannot
be forfeited before the accused is examined in the Sessions
Court. Once a pardon is tendered and accepted, S. 337(2)
renders it obligatory for the prosecution to examine the
approver both in the Committing Magistrate's Court and in
the Sessions Court should the case "be committed, Failure D
of the prosecution to examine the approver in the Sessions
Court vitiates the trial."

The provisions of Sections 337 and 339 of the old Code of Cri-
minal Procedure are almost in indentical terms with the provisions of
Sections 306 and 308 of the Code of Criminal Procedure, 1973. This E
submission on a plain reading of these sections, cannot be sustained.

It has been urged with great vehemence that the appellant, Jagjit
Singh was granted pardon with regard to case F.l.R. No. 238 of 1985
whereas his name appears as an accused in the other four cases which
have been direc!ed to be tried along with above case wherein the facts F
are almost similar. The appellant-approver in sucb circumstances
should not be examined by the prosecution as a witness in as much as
his evidence may be used in the other criminal cases wherein he figures
as an accused. This is against the protection given by Article 2.(3) of
the Constitution of India. It has, therefore, been submitted that the
order dated April 27, 1987 passed in Revision Petition No. 221of1986 G
directing the State not to examine the approver as a witness should not
be set aside. This contention is also not tenable in as much as once an
aq:used is granted pardon under section 306 of the Code of Criminal
Procedure, he ceases to be an accused and becomes a witness for the
·~ prosecution. The only condition imposed by the provisions of the Act
is that the approver must make a full and true disclosure of the whole H
1100 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R,

A of the circumstances within his knowledge relating to the offe_nce and
to every other concerned, whether as principal or abettor, in the com-
mission thereof. So long as the Prosecution does not certify that he has
failed to do so he continues to be a witness and the prosecution is
under obligation to examine him as a witness both in the Committing
Court as well as in the trial court. This has been made very clear by this
B Court in the case of A.J. Peiris v. State of Madras, AIR 1954(SC) 616
I
wherein it has been observed that:

". . . . . . We think that the moment the pardon was
tendered to the accused he must be preswned to have been
discharged whereupon he ceased to be an accused and
became a witness."
c
We have already held hereinbefore that sub-section 4 of Section
306. casts an obligation on the prosecution to examine the approver
both in the Committing Court as well as in the trial court. So the
appellant who has been granted pardon in case F.I.R. No. 238/85 has
D · to be examined hy the prosecution in the trial court no matter that he
has resiled from his earlier statement and tried to conceal what was
within his knowledge with regard to the offence in question. It will be
pertinent to mention here Section 132 of the Indian Evidence Act,
1872 which lays down that:

E "A witness shall not be excused from answering any ques-
tion as to any matter relevant to the matter in issue in any
suit or in any civil or criminal proceedings, upon the
ground that the answer to such question will criminate, or
may tend directly or indirectly to criminate, such witness,
or that it will expose, or tend directly or indirectly to ex-
F pose, such witness to a penalty or forfeiture of any kind."

Proviso-Provided that no such answer, which a witness
shall be compelled to give, shall subject him to any arrest
or prosecution, or be against him in any criminal proceed-
ing, except a prosecution for giving false .evidence by such
G answer.

Therefore, a witness is legally bound to answer any•question
which is relevant to the matter in issue even if the answer to such
question is likely to criminate him directly or indirectly. Proviso to
Section 132 expressly provides that such answer which a witness is fl1
H compelled to give shall not subje~t him to any arr~st or prosecution
STATE v. JAGJIT SINGH !RAY, J.J 1101

nor the same can be proved against him in any criminal proceeding A
except a prosecution for giving false evidence by such answer. The
provisions of proviso to Section 132 of the Indian Evidence Act clearly
protect a witness from being prosecuted on the basis of the answers
given by him in a criminal proceeding which tend to criminate him
directly or indirectly. In view of this provision, the apprehension of the
B
respondent that his evidence as approver will be used against him in
the other four criminal cases where he figures as an accused is without
any basis. On the other hand, he is absolutely protected from criminal
prosecution on the basis of the evidence to be given by him when
examined by the prosecution as an approver in the said case. This
submission of the respondent is, therefore, not tenable. It is pertinent
to refer in this connection the decision of this Court in Laxmipat c
Chorafia and Ors. v. State of Maharashtra, [1968] 2 SCR 626 wherein it
has been observed by Hidayatullah, J as he then was that:

" ......... Under s. 132 a witness shall not be excused
from answering any question as to any matter relevant to
the matter in issue in any criminal proceeding (among D
others) upon the ground that the answer to such question
• • will incriminate or may tend directly or indirectly to expose
him to a penalty or forfeiture of any kind. The safeguard to
this compulsion is that no such answer which the witness is
compelled to give exposes him to any arrest or prosecution
or can it be proved against him in any criminal proceeding E
except a prosecution for giving false evidence by such
answer.''

So Section 132 of the Evidence Act sufficiently protects him
since his testimony does not go against him.

For the reasons aforesaid, the appeal is allowed. The judgment
and order dated April 27, 1987 passed in Revision Petition No. 221 of
1986 is hereby set aside.

R.S.S. Appeal allowed.
G