S.306(4) CrPC | Approver May Be Granted Bail Before Completion Of Trial If He Complies With Conditions Of Pardon: Bombay High Court

An approver who has complied with all conditions of pardon and deposed as a witness in the prosecution's favor need not remain incarcerated till the end of the trial and would be entitled to bail, especially in case of a protracted trial, the Bombay High Court held.

Justice MS Karnik observed that the bar under Section 306(4) of the CrPC against releasing an approver before conclusion of trial needs to be harmoniously construed with personal liberty enshrined under Article 21 of the constitution.

“In my opinion, now that the applicant has complied with the conditions and has been examined as a prosecution witness before the Special Court, the fetters of the applicant's continuing in detention until the termination of the trial needs to be watered down.”

The court noted an approver is kept in custody during the trial to protect him from other accused in the case. This could now be achieved under the Witness Protection Act enacted in 2017 wherein it is State's responsibility to provide protection to a witness.

Facts

The applicant was arrested from Delhi under various sections of the Maharashtra Control of Organized Crime Act (MCOCA) and IPC in a transnational crime along with five others in 2018. Seven accused were shown absconding in the case registered by the DBC CID.

In 2020 the applicant sought pardon under sections 307 read with 306 of the CrPC which was allowed and his statement was recorded. Subsequently, he deposed as the first witness. He approached the HC for bail through Advocate Karan Jain after his plea was rejected by the sessions court.

The public prosecutor opposed the plea on two grounds: 1) According to S 306(4) of the CrPC, unless an approver was out on bail, he should be detained till completion of trial 2) He was already facing threats in prison, therefore he should be incarcerated for his own good.

Advocate Niranjan Mundargi argued as amicus curiae in the case and submitted that the approver was entitled to protection under the Witness Protection Act and didn't need to be incarcerated for that reason.

Advocate Jain submitted that even an accused facing serious charges has a right to speedy trial and can seek bail on the ground of long incarceration as observed by the Supreme Court Union of India Vs. K.A.Najeeb.

Agreeing with his argument the bench observed,

“The applicant is no more an accused but he is a prosecution witness. The applicant cannot be placed in a situation which is worse off than the accused who has a right to a speedy trial and may apply for bail on the ground of long incarceration, citing safety concerns of the applicant for his continued detention.”

The allegations against the accused were inconsequential in view of the tender of pardon, Justice Karnik said. “Looking at the matter from any angle, when the applicant is asking for his liberty, his continued detention when it is obvious that the trial is likely to take a long time to conclude, would be absolute travesty of justice.”

The court further observed that the co-accused did not have any locus opposing the bail to the approver.

“In my humble opinion, detaining the applicant for an indefinite period when there is nothing on record to indicate when the trial will be terminated is not only be unfair to the applicant but will be deterrent to those witnesses seeking tender of pardon in future. This cannot be the object of sub-section 4 of section 306, more so when legislation like the Witness Protection Act is now in place.”