Lakshay Goyal v. Union Territory Th. Police Station Ganderbal

Judgment

1. Through the medium of this petition, the petitioner has invoked the jurisdiction of this court under the provisions of Section 482 of CrPC challenging the vires of Section 306(4)(b) of the Code of Criminal Procedure and has sought a direction for release on bail in the case arising out of FIR No. 333/2023 registered with Police Station Ganderbal for offences punishable under Section 8 and 21 of the NDPS Act. The charge-sheet in respect of which charge has been framed is pending trial before the court of learned Additional Sessions Judge, Ganderbal.

2. After the presentation of this petition, learned counsel for the petitioner submits that he would restrict his relief in this petition only to the extent of grant of bail. He submits that he would not press this petition so far as relief regarding challenge to the vires of the

4. provisions as contained in Section 306(4)(b) of CrPC.

The brief facts of this case are as follows:- That an FIR No.333/2023 came to be registered with the Police Station, Ganderbal for the offences punishable under Section 8 and 21 of the NDPS Act against Feroz Ahmad Bhat S/o Habibullah Bhat R/o Bamloora, Ganderbal. In investigation, it was found that some other persons were also involved in the commission of the said offences Mohd Altaf Nima I attest to the accuracy and authenticity of this document

03.01.2025 CRM(M) No. 744/2024 Page 1 of 7 whose names were included in the FIR as accused and petitioner was one of the accused, so arrayed. While the investigation in the case was in progress, Investigating Officer made an application in respect of the petitioner under Section 306 CrPC and the learned Chief Judicial Magistrate accepted the said application vide its order dated 28th May 2024 and tendered pardon to the petitioner subject to the conditions mentioned in the said order and it was one of the condition that he would stand by his statement during the course of investigation as well as during the trial of the case.

5. Police had filed charge-sheet and accused has been listed in the said charge sheet as approver and accused except the petitioner were charge sheeted and charge were accordingly framed against the said accused. The petitioner who was accused No. 7 had been granted pardon because he had turned to be approver, therefore, charge was not framed against him. The charge sheet had been presented by the police before the trial court and is pending before the Additional Sessions Judge, Ganderbal. Charges have been framed by the trial court against the accused except the petitioner who is accused No. 7. Statement of the petitioner as approver has also been recorded and in his statement, he has stood by the statement made by him at the time when he was granted pardon and statement was recorded before the Magistrate.

6. The petitioner who has stood as an approver made a statement in support of the prosecution approached the trial court for grant of bail, but his application for bail had been dismissed. The trial court in view of the provisions contained under Section 306(4)(b) did not grant the bail because as per the said provision, he has to remain in custody until termination of the trial. The petitioner submits that he has testified against the accused persons before the trial court. He submits that he has made a true and complete disclosure of all the facts and circumstances before the trial court and his further incarceration in custody is not warranted at all. He further submits that the provisions as contained in Section 306(4)(b) cannot be interpreted in such a manner to defeat the provisions of mandate as contained in Article 21 of the Constitution of India. Mohd Altaf Nima I attest to the accuracy and authenticity of this document

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7. Mr. Syed Musaib, Dy. AG appearing for the respondents has contested this application and submitted that in view of the provisions of Section 306(4) (b), the petitioner cannot be admitted to bail.

8. Section 306 (4) (b) which is being relied upon by the learned counsel for the respondents in support of his contention that bail cannot be granted to the approver during the trial till the trial is concluded.

9. To understand the legal position on the subject, it would be apt to note the provisions as contained in Section 306 (4)(b) of CrPC which is reproduced as under:- “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 or privy to an offence to which this section applies, the Chief Judicial 134 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, 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. (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); (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— (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it was made, 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)— (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 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 subsection (4), the Magistrate Mohd Altaf Nima I attest to the accuracy and authenticity of this document

03.01.2025 CRM(M) No. 744/2024 Page 3 of 7 taking cognizance of the offence shall, without making any further inquiry in the case— (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 cognizance is the Chief Judicial Magistrate; (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 Judicial Magistrate who shall try the case himself.”

10. In Suresh Chandra Bahri vs. State of Bihar, 1995 Supp (1) SCC 80, while discussing the object of requiring an approver to be detained in custody until termination of the trial, observed that the same is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him from temptation of saving his onetime friends and companions after he is granted pardon and released from custody.

11. In Mohammad Lateef Deedar vs. State, 2010 Supreme (J&K) 308, the question which came for consideration was whether the approver can be granted bail during trial of the case. The court while interpreting the provisions as contained in sub-Section (3) of Section 337 of the J&K Cr. P.C which is in pari-materia with the provisions contained in Section 306(4)(b) of the Code of Criminal Procedure, 1973, has held that High Court is vested with jurisdiction to enlarge an approver on bail even before conclusion of trial in appropriate cases.

12. Again in Mohammad Sultan Mir vs. State of J&K, 2012 SCC Online J&K 78, has held that the High Court in exercise of its powers under Section 482 of Cr. P. C is vested with jurisdiction to enlarge an approver on bail in exceptional and reasonable cases. Similar view has been taken by this Court in the case of Tariq Ahmad Dar vs. National Investigating Agency, 2023 SCC Online J&K 236.

13. Thus it is clear from the above that the court in exercise of its powers under Section 482 of the CrPC has the jurisdiction to enlarge the approver on bail even before the culmination of the trial provided Mohd Altaf Nima I attest to the accuracy and authenticity of this document

03.01.2025 CRM(M) No. 744/2024 Page 4 of 7 there are exceptional and reasonable circumstances involved in a particular case.

14. The inherent powers vested in the High Court in terms of Section 482 of the Cr. P. C manifestly confirms the aforesaid position of law. As per the aforesaid provision, nothing in the Code of Criminal Procedure can limit or effect the inherent powers of the High Court to make such orders, as may be necessary to give effect to any order under the Code or to prevent the abuse of process of Court or otherwise to secure the ends of justice. Thus, any feter or restriction contained in the Criminal Procedure Code, 1973, which includes clause (4)(b) of Section 306 of the Cr. P. C, cannot take away the powers of the High Court to grant bail to an approver if it finds that the same is required to be done to secure the ends of justice. It is obligatory for this Court to interpret the provisions contained in Section 306(4)(b) read with Section 482 of the Cr. P. C in a manner that would advance the cause of justice, otherwise we may find cases of hardship where an approver can approach the High Court for release on bail but because of the provisions contained in Section 306(4)(b) of the Cr. P. C, he may not be able to secure bail. This would certainly be violative of Article 21 of the Constitution of India, thereby posing a serious challenge to the vires of Section 306(4)(b) of the Cr. P. C. It is, therefore, imperative for the Court to interpret the said provisions in a manner that would leave scope for the High Court to exercise its inherent powers for releasing an approver on bail in appropriate cases.

15. Having regard to what has been stated and discussed above, the petitioner is entitled to be admitted to bail is to be seen. There is no dispute with regard to the fact that petitioner has been tendered pardon by the Court of CJM, Ganderbal and he has accepted the same. The record of the trial court shows that the petiotner has during trial of the case which is pending against rest of the accused made his statement and in the statement he has disclosed full details of the alleged crime and same is in line with his statement recorded by the CJM, Ganderbal at the time of granting pardon in his favour. The trial court while rejecting the application filed by him has also recorded that that petitioner has made statement in line with the statement recorded by the CJM, while granting pardon to him. The trial court has rejected the Mohd Altaf Nima I attest to the accuracy and authenticity of this document

03.01.2025 CRM(M) No. 744/2024 Page 5 of 7 application for grant of bail filed by the petitioner vide order dated

21.12.2024. The trial court while rejecting the order has observed as under:-

16. Likewise in Mandeep Yadav @ Mala. Vs. The National Investigation Agency cited on above, it has been held by the Hon'ble High Court of Judicature of Patna that though there is a bar to release an approver on bail if he is already in custody, till the conclusion of the trial, the High Court can release such approver on bail. In Tariq Ahmad Dar Vs National Investigation Agency (2024) it has been held the High Court in exercise of its inherent powers in an appropriate case can release an approver on bail. So, it is evident that in all these cases it has been held that though there is bar to release approver on bail if he is in custody as per Section 306 (4) of CrPC, the Hon'ble High Court can release approver on bail in exercise of its inherent powers implying that the trial Courts does not have to admit the approver to bail as there is a statutory inhibition on its power in of section 306 clause (4) of the Cr.PC.

17. 1n light of die above discussion the instant application for bail of the accused approver Lakshay Goel in the above titled case is on the ground that this court has no power to admit the approver to bail in terms of section 306 clause (4) of Cr.PC.

16. Thus, it is clear from the facts and circumstances of the case that exceptional circumstances obtained in the case in hand which deserve to be taken into consideration. The petitioner had been in custody for the last six months. He has complied with the conditions of pardon by making statement before the trial court. In light with his statements recorded by the CJM, Ganderbal, at the time of tendering pardon to him. Therefore, this is a fit case where the Court can exercise the discretion of granting bail to the petitioner.

17. Therefore, for the reasons stated above, the petitioner is admitted to bail subject to the following conditions:-

1. That he shall furnish bail bond with one surety in the amount of Rs.1.00 lac (rupees one lac) each to the satisfaction of the trial court. Mohd Altaf Nima I attest to the accuracy and authenticity of this document

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2. that the petitioner shall appear before the trial court as and when required.

3. That he shall not influence the prosecution witnesses whose statements are yet to be recorded by the trial court.

18. The application is allowed. SRINAGAR: 02.01.2025 Altaf (VINOD CHATTERJI KOUL) JUDGE Mohd Altaf Nima I attest to the accuracy and authenticity of this document

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