STATE OF MAHARASHTRAversusABU SALEM ABDUL KAYYAM ANSARI AND ORS.

                        [2010] 12 S.C.R. 204


A
                    STATE OF MAHARASHTRA
                                   v.
        ABU SALEM ABDUL KAYYAM ANSARI AND ORS.
              (Criminal Appeal No. 1925 of 2008)
B                        OCTOBER 5, 2010
            [P. SATHASIVAM AND R.M. LODHA, JJ.)

        Code of Criminal Procedurt:., 1973: ss. 306 to 309 -
C Forfeiture of pardon granted to an accomplice - Right of co-
  accused to cross-examine such accomplice - Held: If pardon
  is granted to an accomplice u!s. 307 for making him approver,
  but, later on pardon is forfeited on a certificate given by public
  prosecutor u/s. 308 then permission cannot be granted to co-
D accused to cross-examine such accomplice - On forfeiture
  or withdrawal of pardon, the accomplice-approver is relegated
  to the position of accused and does not remain a hostile
  witness and he is liable to be tried separately - Constitution
  of India, 1950 - Article 20(3) - Evidence Act, 1872 - s.114,
E 132, 133, 154 - Terrorist and Disruptive Activities (Prevention)
  Act, 1987 - s.19.

       Pursuant to the letter by respondent no.3 expressing
  his desire to disclose truly and fully the facts pertaining
  to the conspiracy which took place at Dubai in
F connection with a murder case, respondent no.3 was
  granted pardon under Section 307, Cr.P.C. and the
  prosecution was granted permission to examine him as
  a witness in the trial. However, when he was called as
  witness (approver) for the prosecution, he refused to tell
G the court about the conspiracy. The Public Prosecutor
  issued a certificate under Section 308 Cr.P.C. to the effect
  that the approver did not comply with the condition on
  which pardon was tendered to him and, therefore, he may

H                                204
STATE OF MAHARASHTRA v. ABU SALEM ABDUL 205
         KAYYAM ANSARI AND ORS.
be tried separately.                                           A

     The co-accused requested the court to allow him to
cross-examine the approver who was certified by the
Public Prosecutor to have committed breach of
conditions of pardon. The Public Prosecutor opposed the        B
said request on the ground that once the pardon was
forfeited, the witness stood relegated back to the status
of accused and as such would lose his status as witness
of the prosecution and, therefore, his entire evidence
though on record could not be used for any purpose and         C
as such the question of cross-examining such hostile
witness by other accused would not arise. The
Designated Court allowed the request of the accused.
Aggrieved, the State filed the instant appeal.

    Allowing the appeal, the Court                             D

     HELD: 1.1. Section 306 Cr.P.C. makes a provision for
tender of pardon to accomplice. The salutary principle of
tendering a pardon to an accomplice is to unravel the
truth in a grave offence, so that guilt of the other accused   E
persons concerned in commission of crime could be
brought home. The object of Section 306 is to allow
pardon in cases where heinous offence is alleged to have
been committed by several persons so that with the aid
of the evidence of the person granted pardon, the
offence may be brought home to the rest. Section 306
                                                               F
Cr.P.C. empowers the Chief Judicial Magistrate or a
Metropolitan Magistrate to tender a pardon to a person
supposed to have been directly or indirectly concerned
in or privy to an offence to which the section applies, at
any stage of the investigation or inquiry or trial of the      G
offence on condition of his making a full and true
disclosure of the whole of the circumstances within his
knowledge relative to the offence. The Magistrate of the
first class, under Section 306, is also empowered to
                                                               H
   206      SUPREME COURT REPORTS             [2010] 12 S.C.R.


A tender pardon to an accomplice at any stage of inquiry
  or trial but not at the stage of investigation on condition
  of his making full and true disclosure of the entire
  circumstances within his knowledge relative to the crime.
  Section 307 Cr.P.C. provides that at any time after
B commitment of a case but before judgment is passed, the
  court to which the commitment is made may, with a view
  to obtaining at the trial the evidence of any person
  supposed to have been directly or indirectly concerned
  in, or privy to, any such offen;.;e, tender a pardon on the
c same condition to such person. The expression, 'on the
  same condition' occurring in Section 307, obviously
  refers to the condition indicated in sub-section (1) of
  Section 306, namely, on the accused making a full and
  true disclosure of the whole of the circumstances within
0 his knowledge relative to the offence and to every other
  person concerned, whether as principal or abettor, in the
  commission thereof. An accomplice who has been
  granted pardon under Section 306 or 307 Cr.P.C. gets
  protection from prosecution. When he is called as a
  witness for the prosecution, he must comply with the
E condition of making a full and true disclosure of the
  whole of the circumstances within his knowledge
  concerning the offence and to every other person
  concerned, whether as principal or abettor, in the
  commission thereof and if he suppresses anything
F material and essential within his knowledge concerning
  the commission of crime or fails or refuses to comply with
  the condition on which the tender was made and the
  Public Prosecutor gives his certificate under Section 308
  Cr.P.C. to that effect, the protection given to him is lifted.
G Thus, the legal position that flows from the provisions
  contained in Sections 306, 307 and 308 Cr.P.C. is that
  once an accomplice is granted pardon, he stands
  discharged as an accused and becomes witness for the
   prosecution. As a necessary corollary, once the pardon
H is withdrawn or forfeited on the certificate given by the
STATE OF MAHARASHTRA v. ABU SALEM ABDUL                  207
         KAYYAM ANSARI AND ORS.
Public Prosecutor that such person has failed to comply         A
with the condition on which the tender was made, he is
reverted to the position of an accused and liable to be
tried separately and the evidence given by him, if any, has
to be ignored in toto and does not remain legal evidence
for consideration in the trial against the co-accused, albeit   B
such evidence may be used against him in the separate
trial where he gets an opportunity to show that he
complied with the condition of pardon. [Para 11, 13, 17)
[215-C; 216-G-H; 217-A-G; 219-D-F]

    1.2. Article 20(3) of the Constitution protects an C
accused from being called or compelled to be witness
against himself. None of the provisions of the Evidence
Act, Cr.P.C. and Constitution militates against the
proposition that a pardon granted to an accomplice under
Section 306 or 307 Cr.P.C. protects him from prosecution 1 D
and he becomes witness for prosecution but on forfeiture
of such pardon, he is relegated to the position of an
accused and his evidence is rendered useless for the
purposes of the trial of the co-accused. He cannot be
compelled to be a witness. There is no question of such E
person being further examined for the prosecution and,
therefore, no occasion arises for the defence to cross- ·
examine him. In the instant case, the Designated Court
seriously erred in treating respondent no. 3 as hostile
witness; it failed to consider that the pardon granted and F
accepted by him was conditional pardon inasmuch as it
was on the condition of his making a true and full
disclosure of all the facts concerning the commission of
crime and once the pardon granted to him stood forfeited,
on the certificate issued by the Special Public Prosecutor, G
he was relegated to the position of an accused and did
not remain a witness. In the circumstances, there was no
justification to permit the defence to cross-examine
respondent no. 3 and to that extent the impugned order
cannot be sustained. [Para 24) [222-B-E]                    H
    208       SUPREME COURT REPORTS             [2010] 12 S.C.R.


A         A.J. Peiris v. State of Madras AIR 1954 SC 616; State
    v. Hiralal Girdharila/ Kothari AIR 1960 SC 360; State (Delhi
    Administration) v. Jagjit Sing 1989 Supp (2) SCC 770,
    referred to.

                         Case Law Reference:
B
       AIR 1954 SC 616            referred to       Para 14

       AIR 1960 SC 360            referred to       Para 15

       1989 Supp (2) SCC 770 referred to            Para 16
c       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1925 of 2008.

      From the Judgment & Order dated 19/23.09.2008 of the
  Designate Court, Bomb Blast Cases, Greater Mumbai in
D Special Case No. 1 of 2006.

          Arun Pednekar, Sanjay V. Kharde and Asha Gopalan Nair
    for the Appellant.

E        Rishi Malhotra, Mrinmayee Sahu and Shivaji M. Jadhav for
    the Respondents.

          The Judgment of the Court was delivered by

          R.M. LODHA, J. 1. The question which this Court has to
F arrive at a conclusion in this criminal appeal preferred by the
  State of Maharashtra under Section 19 of the Terrorist and
  Disruptive Activities (Prevention) Act, 1987 ( for short 'TADA
  Act'), is whether, the accused has a right to cross examine an
  accomplice who has been tendered in evidence by the
G prosecution as approver but later on pardon tendered to him
  was withdrawn on a certificate of the Public Prosecutor under
  Section 308 of the Code of Criminal Procedure, 1973 (for short,
  'Cr.P.C.') and he (approver) has not been further examined by
  the prosecution as its witness.

H
 STATE OF MAHARASHTRA v. ABU· SALEM ABDUL 209
   KAYYAM ANSARI AND ORS. [R.M. LODHA, J.]

     2. The aforesaid question arises in this way. A certain       A
Pradeep Jain (builder) was allegedly eliminated by hired
gangsters on March 7, 1995 and his brother Sunil Jain was
attempted to be killed on that day for not succumbing to the
pressure of parting with their landed property situate in Mumbai
A crime being CR No. 145 of 1995 was registered with D.N.          B
Nagar Police Station, Mumbai. After completion of
investigation, initially few persons were arrested and they were
charge sheeted and tried for the offences punishable under
Sections 302, 307, 120B, 23, 114 IPC, Sections 3, 25(1B)(a),
5, 27 of the Arms Act and Sections 3(2)(i), 3(2(ii), 3(3), 3(5),   c
5, 6 of TADA Act by the Judge, Designated Court, Mumbai.
The present respondents could not be tried as they were
absconding. The Judge, Designated Court, vide judgment
dated August 5, 1997 acquitted the accused who were tried.
The State of Maharashtra carried appeal in the matter before       D
this Court and vide judgment dated July 11, 2001, this Cour1
partly set aside the judgment of the Judge, Designated Court,
Mumbai and convicted some of the accused who were tried.

     3. On September 18, 2002 Abu Salem Abdul Kayyum
Ansari (respondent No. 1) and one Monika Bedi were arrested        E
in Portugal. They were extradited and brought to India. The
extradition was granted for respondent no. 1 in respect of
Pradeep Jain murder case, Bombay Bomb Blast case and Ajit
Diwani murder case. On November 11, 2005, as soon as the
respondent no. 1 was brought to India, he was arrested by          F
Central Bureau of Investigation (CBI) in Bombay Bomb Blast
case and later on he was taken into custody by Anti Terrorist
Squad, Mumbai in connection with Pradeep Jain murder case.
The respondent no.1 was charged along with Mohd. Naeem
Abdul Rahim Khan (respondent no. 2), Riyaz Ahmed Siddique          G
(respondent no. 3), Mohd. Hassan Mehendi Hassan
(respondent no. 4) and Virendrakumar Biharilal Jhamb
(respondent no. 5), having conspired in Dubai with few others
to murder Pradeep Jain and that in pursuance of this
conspiracy, Pradeep Jain was murdered on March 7, 1995. On         H
    210      SUPREME COURT REPORTS               [2010] 12 S.C.R.


A April 28, 2006, the police submitted charge sheet against the
  present respondent nos. 1 to 5 and accordingly TADA Special
  Case No. 1 of 2006 began before the Court of Designated
  Bombay Blast Cases, Greater Mumbai (for short, 'Designated
  Court').
B
       4. On July 3, 2006, the respondent no. 3 (Riyaz Ahmed
  Siddique) addressed a letter to Assistant Commissioner of
  Police, Anti Terrorist Squad (1.0.) expressing his desire to
  disclose truly and fully the facts pertaining to conspiracy which
C had taken place at Dubai in connection with the murder of
  Pradeep Jain.

       5. On July 7, 2006 the Investigating Officer made an
  application under Section 307 Cr.P.C. before the Designated
  Court that the respondent no. 3 may be tendered pardon on
D his readiness and willingness to disclose true and correct facts
  about the conspiracy hatched by them for the murder of
  Pradeep Jain.

       6. On July 18, 2006 the Designated Court tendered pardon
E to the respondent no. 3 under Section 307 Cr.P.C. and
  permitted the prosecution to examine him as witness in the trial.
  In that order, the Designated Court noted that the approver is
  supposed to depose true and correct facts pertaining to the
  crime and that he (approver) has accepted the pardon with that
  condition.
F
       . 7. On September 18, 2008, the respondent no. 3
  (approver) was called as witness for the prosecution; he went
  into the witness box to give evidence but after some time, he
  requested the Court to adjourn the matter as he was observing
G Ramzan fast and feeling weak. The next day i.e. September
  19, 2008, further deposition of approver began but the Special
  Public Prosecufor realized that witness was not desirous of
  telling the Court about conspiracy that led to the murder of
  Pradeep Jain. The Special Public Prosecutor put a specific
H question to the approver as to whether he wanted to tell the
 STATE OF MAHARASHTRA v. ABU SALEM ABDUL                    211
   KAYYAM ANSARI AND ORS. [R.M. LODHA. J.]
Court about the conspiracy of Pradeep Jain murder to which          A
his answer was in the negative. Immediately, the Special Public
Prosecutor issued a certificate under Section 308 Cr.P.C. that
the approver has not complied with the condition on which
pardon was tendered to him and, therefore, he may be tried
separately. The order dated September 19, 2Q08 to the extent        B
it is relevant reads as follows:

    • ...... : .. The Id Spl. PP files certificate u/sec. 308 of
    Cr.P.C. conveying that the approver witness Riyaz Ahmed
    has committed breach of conditions of the Pardon and the
    Pardon may be withdrawn and will be tried for same              c
    offence separately ....... ."

    The matter was then adjourned to September 23, 2008.

     8. On September 23, 2008, the Designated Court passed
                                                                    D
the following order:

    •......•..... Mr. Su deep Pasbola requests the court to allow
    him to cross examine the approver who is certified by the
    Id. Spl. PP to have committed breach of conditions of
    Pardon.                                                         E
    The Id. Spl. PP opposes the said request on the ground
    that once the PP forfeits the pardon the witness relegates
    back to the status of accused to be tried separately for the
    same offence and as such looses his status as witness of        F
    the prosecution, therefore, his entire evidence though till
    be on record but cannot be used for any purpose and as
    such the question of cross examining such hostile witness
    by other accused does not arise.

    Mr. Pasbola submits that merely withdrawal of pardon by         G
    the Id. Spl. PP is not sufficient ta_transpose approver as
    an accused and his evidence so far recorded cannot be
    taken away from record. It is not law that if the witness
    does not support the prosecution he is always telling lies.
    The witness may not support the prosecution in the very         H
    212       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A         language it wants and therefore, the evidence recorded by
          the Court in the proceedings cannot be wiped out.

          Adv. Shri Pasbola has relied on 1978 Cr.L.J. NOC 126
          Andhra Pradesh wherein the Hon'ble Court has observed
          that accused are entitled to cross examine the approver
B         with regard to his statement u/sec. 162 of Cr.P.C.

          In the present case, the statement of approver i.e. Riyaz
          Ahmed Siddiqui is not recorded after grant of Pardon as
          Pardon is granted u/sec. 307 of Cr.P.C. by a Sessions
c         Judge and therefore, no question of reco~ding any
          evidence in Committal Court did arise. However, the
          confessional statement of said witness u/sec. 15 of TADA
          Act was also recorded after his arrest while his statement
          u/sec. 161 of Cr.P.C. was also recorded. In ordinary course
D         if the witness becomes hostile the prosecution and the
          defence both are entitled to cross examine him. The
          evidence of hostile witness cannot be thrown away out
          right. The court can use it in favour of prosecution or
          defence to the extent it supports them and after weighing
E         it can accept it partially in favour of any of the parties to
          the trial. Thus if the law says that the entire evidence of
          hostile witness can not be ignored and still can be used
          there is no reason to block the defence from cross
          examining such witness who in view of prosecution is of
          no value for it since he declines to support the prosecution.
F
          Once the person enters into the witness box as a witness
          the record of his deposition remains to be recorded of
          evidence of witness and as such accused is entitled to
          exercise his rights conferred on him by virtue of Sec. 162
          of Cr.P.C. to contradict him with his previous statements.
G         While the prosecution can not do so even if its witness
          turns hostile. The prosecution has only choice to bring
          supporting material through the cross examination by Id.
          Public Prosecutor. What action is to be taken against the
          approver who commits breach of condition of Pardon is
H
STATE OF MAHARASHTRA v. ABU SALEM ABDUL                          213
  KAYYAM ANSARI AND ORS. [R.M. LODHA, J.]
    to be decided later on as Sec. 308 of Cr.P.C. says that              A
    such person may be either tried for offence in respect of
    which the pardon was so tendered or for any other offence
    which appears to have been committed by him and also
    for giving false evidence. So the stage to decide which
    mode is to be adopted against such an approver is yet to             B
    come. However, simply because prosecution disowned its
    witness he does not loose a status of witness unless
    prosecuted separately in view of provisions of Section 308
    of Cr.P.C. and as such accused has every right to cross
    examine such a witness. The question of probative value              c
    of his evidence is distinct one. However, in my opinion the
    defence has statutory right to cross examine the hostile
    witness or approver and as such accused in this case are
    entitled to exercise the right by cross examining the witness
    Riyaz Ahmed Siddiqui ."                                              D

    9. The State of Maharashtra is aggrieved by the above
order whereby permission has been granted to the defence to
cross examine the respondent no. 3.

     10. Section 306 of Cr.P.C. makes a provision for tender             E
of pardon to accomplice. It reads as follows:-

    "S.-306. -Tender of pardon to accomplice. -

    (1) With a view to obtaining the evidence of any person
    supposed to have been directly or indirectly concerned in            F
    or privy to an offence to which this section applies, the
    Chief Judicial Magistrate or a Metropolitan Magistrate at
    any stage of the investigation or inquiry into, or the trial of,
    the offence, and the Magistrate of the first class inquiring
    into or trying the offence, at any, stage of the inquiry or trial,   G
    may tender a pardon to such person on condition of his
    making a full and true disclosure of the whole of the
    circumstances within his knowledge relative to the offence
    and to every other person concerned, whether as principal
    or abettor, in the commission thereof.                               H
    214       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A         (2) This section applies to -

          (a) any offence triable exclusively by the Court of Session
          or by the Court of a Special Judge appointed under the
          Criminal Law Amendment Act, 1952 (46 of 1952).
8         (b) any offence punishable with imprisonment, which may
          extend to seven years or with a more severe sentence.

          (3) Every Magistrate who tenders a pardon under sub-
          section (1) shall record -
c         (a) his reasons for so doing;

          (b) whether the tender was or was not accepted by the
          person to whom it was made,

o         and shall, on application made by the accused, furnish him
          with a copy of such record free of cost.

          (4) Every person accepting a tender of pardon made under
          sub-section (1) -

E         (a) shall be examined as a witness in the court of the
          Magistrate taking cognizance of the offence and in the
          subsequent trial, if any;

          (b) shall, unless he is already on bail, be detained in
F         custody until the termination of the trial.

          (5) Where a person has accepted a tender of pardon made
          under sub-section (1) and has, been examined under sub-
          section (4), the Magistrate taking cognizance of the
          offence shall, without making any further inquiry in the case
G

          (a) commit it for trial -

          (i) to the Court of Session if the offence is triable
          exclusively by that court or if the Magistrate taking
H
STATE OF MAHARASHTRA v. ABU SALEM ABDUL                       215
  KAYYAM ANSARI AND ORS. [R.M. LODHA, J.]
    cognizance is the Chief Judicial Magistrate;                      A
    (ii) to a court of Special Judge appointed under the
    Criminal Law Amendment Act 1952 (46 of 1952), if the
    offence is triable exclusively by that court;

     (b} in any other case, make over the case to the Chief           B
     Judicial Magistrate who shall try the case himself."

     11. Section 307 Cr.P .C. provides that at any time after
commitment of a case but before judgment is passed, the Court
to which the commitment is made may, with a view to obtaining         c
at the trial the evidence of any person supposed to have been
directly or indirectly concerned in, or privy to, any such offence,
tender a pardon on the same condition to such person.

    12. Section 308 provides for the trial of the approver who
has accepted tender of pardon but fails to comply with the            D,,
condition of pardon. The said provision reads as under:-

     "S. 308.- Trial of person not complying with conditions of
     pardon.
                                                                      E
     (1) Where, in regard to a person who has accepted a
     tender of pardon made under section 306 or section 307,
     the Public Prosecutor certifies that in his opinion such
     person has, either by willfully concealing anything essential
     or by giving false evidence, not complied with the condition
                                                                      F
     on which the tender was made, such person may be tried
     for the offence in respect of which the 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:
                                                                      G
     Provided that such person shall not be tried jointly with any
     of the other accused:

     Provided further that such person shall not be tried for the
     offence of giving false evidence except with the sanction        H
    216       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A         of the High Court, and nothing contained in section 195
          or section 340 shall apply to that offence.

          (2) Any statement made by such person accepting the
          tender of pardon and recorded by a Magistrate under
          section 164 or by a court under sub-section (4) of section
B
          306 may be given in evidence against him at such trial.

          (3) At such trial, the accused shall be entitled to plead that
          he has complied with the condition upon which such tender
          was made, in which case it shall be for the prosecution to
c         prove that the condition has not been complied with.

          (4) At such trial the court shall-

          (a) if it is a Court of Session, before the charge is read
          out and explained to the accused;
D
          (b) if it is the court of a Magistrate before the evidence of
          the witnesses for the prosecution is taken,

          ask the accused whether he pleads that he has complied
E         with the conditions on which the tender of pardon was
          made.

          (5) if the accused does so plead, the court shall record the
          plea and proceed with the trial and it shall, before passing
          judgment in the case, find whether or not the accused has
F         complied with the conditions of the pardon, and, if it finds
          that he has so complied, it shall notwithstanding anything
          contained in this Code, pass judgment of acquittal."

       13. The salutary principle of tendering a pardon to an
G accomplice is to unravel the truth in a grave offence so that guilt
  of the other accused persons concerned in commission of
  crime could be brought home. It has been repeatedly said by
  this Court that the object of Section 306 is to allow pardon in
  cases where heinous offence is alleged to have been
H committed by several persons so that with the aid of the
 STATE OF MAHARASHTRA v. ABU SALEM ABDUL                      217
   KAYYAM ANSARI AND ORS. [R.M. LODHA, J.]
evidence.of the person granted pardon, the offence may be             A
brought home to the rest. Section 306 Cr.P.C. empowers the
Chief Judicial Magistrate or a Metropolitan Magistrate to tender
a pardon to a person supposed to have been directly or
indirectly concerned in or privy to an offence to which the section
applies, at any stage of the investigation or inquiry or trial of     B
the offence on condition of his making a full and true disclosure
of the whole of the circumstances within his knowledge relative
to the offence. The Magistrate of the first class, under Section
306, is also empowered to tender pardon to an accomplice at
any stage of inquiry or trial but not at the stage of investigation   c
on condition of his making full and true disclosure of the entire
circumstances within his knowledge relative to the crime.
Section 307 vests the court to which the commitment is made,
with power to tender a pardon to an accomplice. The
expression, 'on the same condition' occurring in Section 307,         D
obviously refers to the condition indicated in sub-section (1) of
Section 306, namely, on the accused making a full and true
disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission
thereof. An accomplice who has been granted pardon under
                                                                      E
Section 306 or 307 Cr.P.C. gets protectiori from prosecution.
When he is called as a witness for the prosecution, he must
comply with the condition of making a full and true disclosure
of the whole of the circumstances within his knowledge
concerning the offence and to every other person concerned,           F
whether as principal or abettor, in the commission thereof and
if he suppresses anything material and essential within his
knowledge concerning the commission of crime or fails or
refuses to comply with the condition on which the tender was
made and the Public Prosecutor gives his certificate under            G
Section 308 Cr.P.C. to that effect, the protection given to him
is lifted.

      14. In A.J. Peiris v. State of Madras, 1 a 3 - Judge Bench
1.   AIR 1954 SC 616.                                                 H
    218        SUPREME COURT REPORTS                [2010] 12 S.C.R.


A   of this Court stated that the moment a pardon is tendered to
    the accused he must be presumed to have been discharged,
    whereupon he ceases to be an accused and becomes a
    witness.

       15. In State v. Hira/a/ Girdharila/ Kothari, 2 with reference
8
  to Sections 337 and 339 of the Code of Criminal Procedure,
  1898 (now Sections 306, 307 and 308 Cr.P .C.), this Court
  stated that a pardon tendered under Section 337 is a protection
  from prosecution; failure to comply with the condition on which
C the pardon is tendered removes that protection.

        16. In State (Delhi Administration) v. Jagjit Singh, 3 this
    Court held as under:-

          "8 ....... The power to grant pardon carries with it the right
D         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 granted pardon
          had to comply with the condition of making a full and true
E
          disclosure of the whole of the circumstances within his
          knowledge relative to the offence and to every other
          concerned whether as principal or abettor, in the
          commission thereof. It is because of this mandate, the
          State cannot withdraw the pardon from the approver nor
F         the approver can cast away the 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. The
          approver may have resiled from the statement made
          before the Magistrate in the Committing Court and may not
G         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

    2.   AIR 1960 SC 360.
H   3.   1989 Supp (2)   sec no.
  STATE OF MAHARASHTRA v. ABU SALEM ABDUL                       219
    KAYYAM ANSARI AND ORS. [R.M. LODHA, J.]
      Prosecutor certifies that the approver has not complied           A
      with the conditions on which the tender was made by wilfully
      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                   B
      offences ........ ".

        17. The above statement of law in Jagjit Singh 3 cannot be
  understood as laying down that an accomplice who has been
  tendered pardon and called as a witness for prosecution must          C
  be continued to be examined as a prosecution witness
  although he has failed to comply with the condition on which
  the tender of pardon was made and a Public Prosecutor
  certifies that he has not complied with the condition on which
  the tender was made. As a matter of fact, in Jagjft Singh's3 case
. no certificate was given by the Public Prosecutor. The legal          D
  position that flows from the provisions contained in Sections
  306, 307 and 308 Cr.P.C. is that once an accomplice is
  granted pardon, he stands discharged as an accused and
  becomes witness for the prosecution. As a necessary corollary,
  once the pardon is withdrawn or forfeited on the certificate given    E
  by the Public Prosecutor that such person has failed to comply
  with the condition on which the tender was made, he is reverted
  to the position of an accused and liable to be tried separately
  and the evidence given by him, if any, has to be ignored in toto
  and does not remain legal evidence for consideration in the trial     F
  against the co-accused, albeit such evidence may be used
  against him in the separate trial where he gets an opportunity
  to show that he complied with the condition of pardon. As a
  matter of fact, it is for this reason that a specific statement was
  made by the counsel for the State of Maharashtra before us -          G
  a similar statement was made before the Designated Court as
  well - that the evidence of respondent no. 3 so far recorded
  shall not be used by the prosecution in the present trial.

      18. Section 114, illustration (b) of the Indian Evidence Act,'    H
    220       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A   1872 (for short, 'Evidence Act') provides that the Court may
    presume that an accomplice is unworthy of credit, unless he is
    corroborated in material particulars.

          19. Section 132 of the Evidence Act reads as follows:
8         "132. Witness not excused from answering on ground that
          answer will criminate - A witness shall not be excused from
          answering any question as to any matter relevant to the
          matter in issue in any suit or in any civil or criminal
          proceeding, upon the ground that the answer to such
c         question will criminate, or may tend directly or indirectly to
          criminate, such witness, or that it will expose, or tend
          directly or indirectly to expose, such witness to a penalty
          or forfeiture of any kind:

D         Proviso - Provided that no such answer, which a witness
          shall be compelled to give, shall subject him to any arrest
          or prosecution, or be proved against him in any criminal
          proceeding, except a prosecution for giving false evidence
          by such answer."
E       20. Section 133 of the Evidence Act provides that an
    accomplice shall be a competent witness against an accused
    person; and a conviction is not illegal merely because it
    proceeds upon the uncorroborated testimony of an accomplice.

F         21. Section 154 of the Evidence Act is as under:

          "S.-154. Question by party to his own witness.- (1) The
          Court may, in its discretion, permit the person who calls a
          witness to put any question to him which might be put in
          cross examination by the adverse party.
G
          2.   Nothing in this section shall disentitle the person so
          permitted under sub-section (1 ), to rely on any part of the
          evidence of such witness."

          22. Section 315 of Cr.P.C. makes an accused person a
H
 STATE OF MAHARASHTRA v. ABU SALEM ABDUL                   221
   KAYYAM ANSARI AND ORS. [R.M. LODHA, J.]

competent witness for the defence and he may voluntarily give     A
evidence on oath in disproof of the charges made against him
or any person charged together with him at the. same trial. The
said provision reads as follows:

    "S.-315. Accused person to be competent witness·_             B
    (1) Any person accused of an offence before a Criminal
    Court shall be a competent witness for the defenee and
    may give evidence on oath in disproof of the charges
    made against him or any person charged together with him
    at the same trial:                                            d
    Provided that-

    (a) he shall not be called as a witness except on his own
    request in writing;                         ·          '      ·
                                                                  8
    (b) his failure to give evidence shall not be made the'
    subject of any comment by any of the parties orthe court
    or give rise to any presumption against himself or any
    person charged together with him at the same trial.
                                                            ,.; E
    (2) Any person against whom proceedings are instituted
    in any Criminal Court under section 98, or section 107, or
    section 108, or section 109, or section 110, or under'.
    Chapter IX or under Part B, Part C or Part D of Chapter
    X, may offer himself as a witness in such proceedings:        F
    Provided that in proceedings under section 108, section
    109 or section 110, the failure of such person to give·
    evidence shall not be made the subject or any comment
    by any of the parties or the court or give rise to any
    presumption against him or any other person proceeded         G
    against together with him at the same inquiry."

    In other words, ·section 315 clearly lays down that an
    accused cannot be compelled to give evidence except on
    his own request in writing.                                   H
    222       SUPREME COURT REPORTS             [2010] 12 S.C.R.


A       23. Article 20(3) of the Constitution protects an accused
    from being called or compelled to be witness against himself.

       24. We have referred to the aforesaid provisions of the
  Evidence Act. Cr.P.C. and Constitution to indicate that none
  of these provisions militates against the proposition that a
8
  pardon granted to an accomplice under Section 306 or 307 1
  Cr.P.C. protects him from prosecution and he becomes
  witness for prosecution but on forfeiture of such pardon, he is
  relegated to the position of an accused and his evidence is
C rendered useless for the purposes of the trial of the co-accused.
  He cannot be compelled to be a witness. There is no question
  of such person being further examined for the prosecution and,
  therefore, no occasion arises for the defence to cross examine
  him. The Designated Court seriously erred in treating the
  respondent no. 3 (Riyaz Ahmed Siddique) hostile witness; it
D failed to consider that the pardon granted and accepted by him
  was conditional pardon inasmuch as it was on the condition of
  his making a true and full disclosure of all the facts concerning
  the commission of crime and once the pardon granted to him
  stood forfeited, on the certificate issued by the Special Public
E Prosecutor, he was relegated to the position of an accused and
  did not remain a witness. In the circumstances, there was no
  justification to permit the defence to cross examine the
  respondent no. 3 and to that extent the impugned order cannot
  be sustained.
F
           25. The appeal is allowed as indicated above.

    D.G.                                          Appeal allowed.