S.306 CrPC No Bar On High Court To Invoke Its Powers U/S 482 And Admit An Approver On Bail: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court recently reiterated that in terms of Sec 306(4) (b) CrPC bail to approver who is in custody cannot be granted, however, in an appropriate case High Court can release the approver on bail in exercise of its inherent powers under Section 482 CrPC.

The observations were made by Justice Mohan Lal while hearing a plea in terms of which the petitioner had prayed for quashing Section 306(4)(b) CrPC for being unreasonable for allegedly putting restrictions upon the powers of the trial Court to release the approver on bail.

In his plea the petitioner submitted that during the pendency of trial, he has been made approver in the said case, wherein, he has already deposed correctly and truthfully before the Trial Court, as prosecution witness, and therefore, at this stage petitioner is entitled to grant of bail.

He further contended that his release would advance the case of justice, whereas, the denial thereto will defeat the same and result into the grave miscarriage of justice to the petitioner apart from infringing the constitutional rights and In case he is detained in custody till final conclusion of trial, the same will discourage the persons to be as such approver/witness which will hamper the interest of prosecution.

The provisions contained in Section 306(4)(b) CrPC mandate that unless the accused is already on bail he shall be detained in custody until the termination of trial operates as complete bar on the powers of Criminal Court to release approver on bail, however, the High Court has the inherent powers under Section 482 CrPC to pass any order including release of petitioner/approver on bail, it was argued.

Per contra, respondents submitted that Section 306(4)(b) requires an approver to be kept in judicial custody until the termination of trial if he is not already released on bail, and the object thereof is not to punish the approver, but to protect him from being exposed to harm from other accused/accomplices.

Adjudicating upon the matter Justice Lal observed Section 306 CrPC is an exception to the general principles of criminal law and has been incorporated in the statute book to ensure that the prepetrators of crime are punished and do not got scot free.

"The person who volunteers to make full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and other persons connected therewith, when satisfies the terms and conditions of the pardon tendered to him by making a statement during the trial of the case, which pardon entitles him to be set at liberty, then what is the purpose of keeping such a person in detention thereafter",the bench said.

Referring to a catena of judgments on the subject the bench observed that there cannot be any quarrel with legal position that in terms of section 306(4)(b) CrPC bail to approver who was in custody cannot be granted, however, in an appropriate case High Court can release the approver on bail in exercise of it’s inherent powers under Section 482 CrPC.

Pointing out to the fact that the petitioner has turned approver and was granted pardon by the trial court and has also been examined as prosecution witness (PW No.1) by the trial court wherein, he has supported the prosecution case in the trial court, the bench said that from the date of arrest on June 2nd 2018 the petitioner from more than 4½ years is lying in judicial custody in District Jail Ambphala Jammu and the said provision in no way be interpreted to defeat the mandate contained in Article 21 of the Constitution of India.

"What purpose it is to be achieved by keeping an approver in custody during the trial after he satisfactorily complied with the terms and conditions of tender of pardon, he gets right to be released and cannot be allowed to remain in jail custody indefinitely", the bench underscored.

In view of the said legal position the bench invoked its powers under Section 482 CrPC and admitted the petitioner on bail.

Case Title: Tariq Ahmad Dar Vs NIA.

Citation: 2023 LiveLaw (JKL) 94

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