Application To Become Approver Cannot Be Withdrawn Once Pardon Is Granted: Bombay High Court

The Nagpur bench of the Bombay High Court recently held that an accused cannot withdraw application to become a witness for the prosecution (approver) against co-accused once the application is accepted and pardon is already granted.

Justice GA Sanap explained that once an accused becomes an approver, (s)he must be examined as a prosecution witness, and pardon can be withdrawn only as per section 308(1) of the CrPC if the prosecutor, after examination, certifies that (s)he did not adhere to the terms of her pardon.

“Section 308(1) Cr.P.C. would show that after acceptance of pardon in view of the scheme of Sections 306 to 308 the approver has no choice or option or a right to not press or withdraw the application made to become an approver… in order to relegate the approver to the position of the accused the public prosecutor must certify that in his opinion the approver has, either by wilfully concealing anything essential or by giving false evidence, has not complied with the conditions on which the tender was made. Only after such certificate being given by the public prosecutor, the pardon tendered to the approver can be withdrawn”, the court held.

The court upheld the pardon tendered to a co-accused turned approver in a murder case and set aside a Sessions Court order allowing her to withdraw her application to become an approver.

The case revolved around a crime registered at Police Station Washim City, where the approver, Madhuri Badrinarayan Gote, was initially an accused along with her husband in a case of murder, kidnapping, and other charges punishable under Sections 302, 364-A, 363, 201 and 120B of the IPC. The crime involved the abduction and murder of a 15-year-old girl, who was the niece of the informant.

Gote applied to become an approver during the course of the trial. Her application was accepted, and she was granted a pardon under certain conditions, which required her to provide full and truthful disclosure about the crime and all related circumstances within her knowledge.

After the trial began but before her own examination as a prosecution witness, she claimed that she made the application to become an approver due to ignorance of law, and sought to withdraw it. An advocate filed a Vakalatnama to appear on her behalf. The prosecution filed an application against this Vakalatnama, arguing that the application to become approver cannot be withdrawn in this manner. The Additional Sessions Judge rejected the prosecution’s application. Thus, the prosecution challenged the order in the present writ petition.

The court explained that once an accused becomes an approver and accepts a pardon, they transition from being an accused to a witness for the prosecution. This shift in status is accompanied by the legal duty to provide truthful testimony as per the conditions of the pardon. While nobody can compel the approver to testify a certain way, the approver must testify with the status of prosecution witness in the trial, the court said.

“The approver at the stage of trial may support or may not support the case of the prosecution. However, once the pardon is tendered the approver has no choice than to give evidence before the Court as an approver”, the court said.

The court ruled that an approver, once accepted, does not have the right to withdraw the application without following the procedures outlined in Section 308(1) of the CrPC. This section requires the Public Prosecutor's certification that the approver has deliberately concealed essential information or provided false evidence.

“there is no provision under the Cr.P.C. which empowers or enables the person on acceptance of pardon on terms and conditions to make an application of this kind and to pray for withdrawal of that application made to become an approver. It is to be noted that on acceptance of tender of a pardon the accused gets discharged from the case. The said person then becomes the witness for the prosecution. The said person therefore without following the procedure under Section 308 (1) of the Cr.P.C. cannot be relegated to the position of the accused”, the court held.

The process of withdrawal is contingent upon the Public Prosecutor's certification, which triggers the requirement for a separate trial for the original offences and the additional offence of giving false evidence, the court said.

The court and quashed the impugned order of the Additional Sessions Judge opining that it did not have proper application of law.

The court directed the Additional Sessions Judge to examine the approver as a witness, and decide the prosecution’s application to transfer her to another prison on the facts of the case.

Case no. – Criminal Writ Petition No. 472 of 20 23

Case Title – State of Maharashtra v. Madhuri Badrinarayan Gote

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