Chennakesav Reddy, J.-The nub of the novel problem that is provoked or posed for resolution in this case is whether an approver is a person proposed to be examined by the prosecution falling within the sweep of section 173(4), Criminal Procedure Code, and a statutory obligation is thereby cast on the prosecution under section 173(4) Criminal Procedure Code, to supply a copy of the former statement recorded from him during the course of the investigation while he was an accused person. 2. The history of the cause and the commission of crime leading to the prosecution is this: 3. The first accused in the case was the Commissioner of Police, Hyderabad during 1965. The second accused was the Sub-Inspector of Police, Panjagutta Police Station, Hyderabad at the relevant period; He was tendered pardon under section 8 of the Criminal Law (Amendment) Act, 1952, and examined as approver. He has been examined by the prosecution as P.W. 5. The 3rd accused is a contractor and is a close friend of A-1. 4. A-1 wanted to secure a plot of land in Banjara Hills for constructing a house. D.W. 7 was the Deputy Commissioner of Police, Law and Order at that time. At his instance P.W. 5 searched and found a vacant piece of land opposite to the police out-post, Banjara Hills. It was occupied by hut dwellers. Agmaiah was the leader of these hut dwellers, P.W. 5 contacted the Patwari of Shaikpet village and learnt from him that the said plot was under Survey No. 129 of 1955 and that the owner of the said plot was one Syed Shah Abdul Qader. P.W. 5 passed on the information to D.W. 7. Thereupon D.W. 7 questioned P.W. 5 whether it would be possible to get the hut dwellers evicted from the site and P.W. 5 told D.W. 7 that it would not be difficult. D.W. 7 then told P.W. 5 that he would pass on the information to A-1 and thereafter let him know further about it. 5. Now a few lines about the title and extent of this piece of land. Survey No. 129 of 1955 is of an extent of Ac. 3-26 guntas. This property was gifted by the Nizam of Hyderabad to Syed Shah Abdul Qader under Ex. P. 2 dated 30th October, 1939. Qader employed Agmaiah as a watchman for the plot. Agmaiah was paid Rs. Survey No. 129 of 1955 is of an extent of Ac. 3-26 guntas. This property was gifted by the Nizam of Hyderabad to Syed Shah Abdul Qader under Ex. P. 2 dated 30th October, 1939. Qader employed Agmaiah as a watchman for the plot. Agmaiah was paid Rs. 5 a month as wages. He was also given some amount for raising a hut on the plot. Subsequently it appears, some relations of Agmaiah also raised huts and were giving there. 6. On 15th September, 1938, Qader executed a settlement deed in favour of his wife Fatima Sugra Saheba under Ex. P3. However, it appears in the revenue records necessary mutation was not made and Qader continued to be shown as Pattadar. Qadar died on 27th September, 1959. P.Ws. 2 and 3 in the case are the sons of Qader. 7. To resume the narrative, some time in August 1975, A-1 and D.W. 7 visited the plot in Banjara Hills. P.W. 5 was also present and showed them the plot. As directed by D.W.7, when P.W.5 called Agmaiah aside and spoke to him. Agamaiah told them that the owner of the plot was one Syed Shah Abdul Qader and that he was looking after the land as a watchman and he was paid Rs. 5 per month. A-1 approved the plot and went away. 8. In the first week of September. 1965 P.W. 5 was called to the house of A-1, by D.W.7. At the house of A-1 they discussed the way, and means to pressurise Agmaiah to sell the plot of land as the owner. P.W. 5 than contacted Agmaiah and pressed him to stand as a seller. He was taken to the house of A-1, 3 or 4 times. Ultimately Agmaiah agreed to stand as the owner. On the assurance given by P.W. 5 that all help will be given to him in case of any trouble to him, Agmaiah agreed to stand as an owner and sell the land. P.W. 5 informed A-1 about it and A-1 directed him to meet D.W.7. P.W. 5 accordingly went to D.W. 7. At that time A-4 was also present at the house of D.W. 7. P.W. 5 told D.W.7 that Agmaiah was willing to stand as a seller. P.W. 5 informed A-1 about it and A-1 directed him to meet D.W.7. P.W. 5 accordingly went to D.W. 7. At that time A-4 was also present at the house of D.W. 7. P.W. 5 told D.W.7 that Agmaiah was willing to stand as a seller. But D.W. 7 suggested that unless there was a document of title in favour of Agmaiah in respect of the plot of land it would not be safe to take a sale deed from Agmaiah. So he directed P.W. 5 to contact A-5, a broker in real estate business. P.W. 5 met A-5 and told him that D.W. 7 asked him to contact him and informed him that a document of title was needed in favour of Agmaiah in respect of plot of land in Banjara Hills. A-5 in the first instance was not willing to create a document of title. But P.W.5 threatened him. After some days A-5 gave a document of title in respect of the said plot of land to P.W. 5. After one week P.W.5 went to A-5 and collected the document from him. The document was written in Urdu on one-rupee stamp paper. When P.W.5 questioned A-5 Narasinglal, as to how the document was prepared, he told P.W. 5 that he got the document prepared showing that Qadar had gifted the land in favour of Agmaiah in October, 1951 in consideration of the services rendered by him. P.W. 5 handed over the document to D.W. 7. 9. it was then decided that a sale deed should be got executed by Agmaiah in favour of A-3 in the first instance. D.W. 7 then instructed P.W. 5 to go to an architect and get a plan for the site prepared. P.W. 5 accompanied by A-3 then went to one Krishnaswmay, architect, Sultan Bazar and sought his services for preparing the plan of the site to be attached to the sale deed. P.W. 5 furnished the necessary particulars of the site to the architect. 10. In the last week of September, 1965, A-3 started fixing the boundry stones for the site. There was objection from the hut-dwellers for the fixing of boundry stones. A-3 then give complaint to P.W. 5 which was endorsed by P.W. 5 to the head constable in charge of the police outpost at Banjara Hills. 10. In the last week of September, 1965, A-3 started fixing the boundry stones for the site. There was objection from the hut-dwellers for the fixing of boundry stones. A-3 then give complaint to P.W. 5 which was endorsed by P.W. 5 to the head constable in charge of the police outpost at Banjara Hills. P.W. 5 also received a copy of the petition of A-3 presented to the Assistant Commissioner of Police on 6th October, 1973. This petition was also marked to the head constable for action. Subsequently, A-3 presented another petition, Ex. P-29, to the Assistant Commissioner of Police, P.W. 5 for permission for blasting the boulders in the site. A-3 also enclosed a challan Ex.P. 36 for Rs. 2. On 10th October, 1975 P.W. 5 recommended to the Assistant Commissioner of Police for grant of licence in favour of A-3 for blasting under his report Ex. P. 31. A licence Ex. P. 32 for blasting in the site was granted to A-3 on 12th October. 1965 by the Assistant Commissioner of Police for the period 13th October, 1965 to 19th October, 1965. 11. When A-3 started blasting work in the site about 50 hut-dwellers gathered and protested against the blasting work done on the site. So blasting operations were stopped. P.W. 5 on receiving information went to the site and informed the hut-dwellers that Agmaiah was prepared to sell the land to A-3 and so they should not object to the blasting work. The objectors told P.W. 5 that Agmaiah had no right to sell the land and that he was also another hut-dweller like them. Meanwhile, P.Ws. 2 and 3, sons of Syed Shah Abdul Qader also came to the spot. The hut-dwellers showed P.Ws. 2 and 3 and told that they were the real owners of the land. P.Ws. 2 and 3 also informed P. W. 5 that they were the real owners of the site and Agmaiah had absolutely no right therein. P.W. 5 immediately went and informed A-1 and D. W. 7 about the seriousness of the situation. Immediately a platoon of police force was sent by them. On seeing the Police force, the hut dwellers left the place P. W. 5 then asked P.W. 2 to bring the documents relating to the title to the site to the police station and left for the Panjagutta Police Station. After sometime, P.Ws. Immediately a platoon of police force was sent by them. On seeing the Police force, the hut dwellers left the place P. W. 5 then asked P.W. 2 to bring the documents relating to the title to the site to the police station and left for the Panjagutta Police Station. After sometime, P.Ws. 2 and 3 went to the Panjagutta Police Station with the documents of title and showed them to P. W. 5. P. W. 5 told them that in fact the site was being purchased by A-1 and that there was no use of approaching him. P.W. and D.W. 7 advised P.Ws. 2 and 3 to sell the land at Rs. 3,000 to A-1. But they did not agree. 12. D.W. 7 instructed P.W. 7 to obtain two receipts from Agmaiah one for Rs. 1,600 and another for Rs. 1,400 showing that he had received these amounts through A-3 towards the sale price of his site. P.W. 5 obtained two receipts, Ex. D-20, dated 16th August, 1965 for Rs. 1,600 and Ex. D-21 date 22nd October 1965 for Rs. 1,400 from Agmaiah. Thereafter as instructed by D.W. 7, P.W. 5 took Agmaiah to Sub-Registrar’s Office, Khairatabad, on 25th October, 1965 where A-3 and D.W. 7 were also present with a typed sale deed. A-4, 5 and one K.S. Ramachandra Rao and Raman Nair also were present. Agmaiah admitted before the Sub Registrar the receipt of Rs. 3,000 towards the sale price and the registration was done. Ex. P-17 is the sale deed conveying 3,500/-sq. Yards to A-3. D.W. 7 then paid a reward of Rs. 100 to Agmaiah. in the sale deed Ex. P. 17 it was specifically recited that Agmaiah purchased the land from Syed Shah Abdul Qader under the document of title bearing No. E. 063014 dated 13th October, 1951. On 15th October, 1965 ten days prior to the execution of the sale deed, a petition Ex. P. 15 presented by Smt. Sughra Begum to the Commissioner of Police was received by P.W. 5 for enquiry and report. P.W. 5 endorsed it to the head constable at the out-post for enquiry and report, P.W. 5 contacted D.W. 7 and informed him of the receipt of the petition Ex.P. 15. On the instructions given by D.W. 7 he submitted a report Ex.P. 34 directing Smt. Sughra Begum to seek redress in a civil Court. P.W. 5 endorsed it to the head constable at the out-post for enquiry and report, P.W. 5 contacted D.W. 7 and informed him of the receipt of the petition Ex.P. 15. On the instructions given by D.W. 7 he submitted a report Ex.P. 34 directing Smt. Sughra Begum to seek redress in a civil Court. P.W. 5 also received a petition Ex. P-36 from hut-dwellers requesting him to protect the possession of the land. Ex. P-37 is another petition sent by the hut-dwellers to the Home Minister with a copy marked to him. P.W. 5 contacted D.W. 7 and after receiving instructions from him, be submitted a report Ex. P-38 stating that the allegations in the petitions were false and that the hut-dwellers had no right to the site. But they all assembled at the site and tried to take out a procession under the leadership of M.A. Rashed, M.L.A. P.W. 5 went to the site and advised them not take out the procession but to take legal action if they had really any right. The hut-dwellers then dispersed. They later approached P.W. 15, G. Venkataswamy the then President of the Union of Hutmen Dwellers. P.W. 5 and D.W. 7 approached P.W. 15 and requested him not to encourage the hut-dwellers for starting any agitation. There was a meeting thereafter at the house of A-1 with the hut-dwellers represented by P.W. 15. D.W. 7 was also present. A-1 promised the hut-dwellers that he would not evict them. Agmaiah fell ill and died on 18th December, 1965. After his death A-1 instructed P.W. 5 to get another site plan prepared by the Architect, Krishnaswami. A-1 also instructed P.W. 5 to get a Municipal No. also alloted to the site by the Municipal Corporation. P.W. 5 got a number allotted to the site and also got a plan prepared by the architect furnishing the municipal number of the site. On 24th December, 1965 P.W. 5 went to the Sub-Registrar’s Office, Khairatabad, along with A-3. There A-5 was present with two attestors. A sale deed Ex. P-18 was registered in favour of A-1 by A-3 conveying 2,270 square yards for a consideration of Rs. 8,500. Subsequently, some hut-dwellers still remained on the site purchased by A-1 from A-3. On the instructions of A-1, P.W. 5 got them vacated by paying a compensation of Rs. 10 each. A sale deed Ex. P-18 was registered in favour of A-1 by A-3 conveying 2,270 square yards for a consideration of Rs. 8,500. Subsequently, some hut-dwellers still remained on the site purchased by A-1 from A-3. On the instructions of A-1, P.W. 5 got them vacated by paying a compensation of Rs. 10 each. He took a letter from them that he voluntarily gave possession to A-1. On the remaining portion Some hut-dwellers continued to live and no action was taken to evict those hut-men. 13. On 17th August, 1967 the Special Police Establishment, New Delhi, registered a First Information Report against A-1 under section 5 (2) of the Prevention of Corruption Act. On 24th August, 1967 one Mr. Roberts, D.S.P. C.B.I., conducted the house-search of A-1. During the search, he seized among other documents Ex. P-25, a photostat copy of the gift deed executed by Syed Shah Abdul Qader in favour of Agmaiah, The document was dated 16th October, 1961. Mr. Roberts sent Ex. P. 25 to anxpert and also addressed a letter to he Director of Government Press to furnish the particulars of the printing and issue of the stamp paper over which the original of Ex. P. 25 was written. P. W. 12 the Assistant Director, Government Secretariat Press at the relevant period stated that stamp bearing No. E063014 was printed on 29th November 1951 and issued to the the Hyderabad treasury on 29th July, 1952. P.W. 13, the Handwriting Expert opined that the signature on Ex. P-25 was not similar to the admitted signatures of the executant Syed Shah Abdul Qadar. After completion of the investigation a report was sent to the State Government recommending prosecution of the accused in the case. The Central Government accorded sanction to prosecute A-1 under Ex. P.1, dated 21st November, 1970. The charge-sheet was filed on the case on 15th December, 1970 before the Special Judge for SPE and ACB Cases, Hyderabad. 14. The 2nd accused filed an application on 4th June, 1971 before the Special Judge under section 8 of the Criminal Law Amendment Act, 1952, praying that he may be taken as approver. The application was not opposed by the prosecution and the 2nd Accused was tendered pardon and taken as approver on 26th July, 1971. 15. 14. The 2nd accused filed an application on 4th June, 1971 before the Special Judge under section 8 of the Criminal Law Amendment Act, 1952, praying that he may be taken as approver. The application was not opposed by the prosecution and the 2nd Accused was tendered pardon and taken as approver on 26th July, 1971. 15. The main and basic plea of both the accused A-1 and A-3 was one and the same, namely, that they were bona fide purchasers of the site for value. 16. On behalf of the prosecution, to bring home the guilt of the accused, 16 witnesses were examined by the prosecution. To substantiate the plea of the accused, D.Ws. 1 to 3 were examined. On a consideration of the entire evidence adduced in the case, the learned Special Judge held that the evidence of the approver was worthy of acceptance. He also held that the story of the approver was corroborated by the testimony of P.Ws. 2, 3, 6 and 7 in material particulars. He, therefore, convicted A-1 under section 120-B and section 471 read with section 467, Indian Penal Code and under section 5 (1)(d) read with section 5(2) of the Prevention of Corruption Act and sentenced him to undergo simple imprisonment for a period of one year under each count. He convicted A-3 under section 120-B and section 471 read with section 467, Indian Penal Code, and sentenced him to undergo simple imprisonment for one year. The sentences passed against both the accused were directed to run concurrently. A-6 died during the pendency of the trial and A-4 was acquitted of all the charges. 17. A-1 and A-3 have preferred Crl. Appeal No. 794 of 1976 and 754 of 1976 respectively aggrieved against their convictions and sentences. 18. The learned Counsel for the appellants makes a two-pronged attack on the validity of the convictions. Firstly, he submits that the approver, P.W. 5 is an un-reliable witness and that he was a stock approver in all cases put up against the senior officers of the police Department at that time. The second line of attack is more radical and formidable. Firstly, he submits that the approver, P.W. 5 is an un-reliable witness and that he was a stock approver in all cases put up against the senior officers of the police Department at that time. The second line of attack is more radical and formidable. He submits that the statement recorded from P. W. 5 during the course of the investigation by Mr Roberts, was not made available to the accused for an effective cross-examination of P.W. 5, and therefore, there was no fair and proper trial of the accused in the case. 19. The learned Counsel for the prosecution Mr. Vanamamalai, submits that P.W. 5 was not a witness proposed to be examined by the prosecution within the meaning of section 173 (4), Criminal Procedure Code and therefore, there was no statutory obligation cast on the prosecution to supply a copy of the statement of P. W. 5 to the accused before the commencement of the trial. According to him, P. W. 5 was a witness examined by the operation of law since he was tendered pardon by the learned Special Judge and therefore, the provisions of section 173 (4), Criminal Procedure Code were not attracted. It was his further submission that the prosecution was only obliged to supply a copy of former statement of P. W. 5 if an application was made in that behalf. He argues that admittedly no such formal application was made and, therefore, the prosecution cannot be blamed if the statement was not made available to the accused. 20. Before we embark on a reapprisal of the evidence of the approver and examine the reliability, we think it more proper to consider the second contention which is more radical. 21. The question fox decision is whether an approver is a person proposed to be examined by the prosecution within the meaning of section 173, Criminal Procedure Code and a statutory obligation is cast on the part of the investigating officer to supply the statement recorded by him during the course of the investigation from the approver before the pardon was tendered while he was only an accused. If the answer is in the affirmative, what is the effect of the non-supply of such a statement. If the answer is in the affirmative, what is the effect of the non-supply of such a statement. Let us have a close look at the language employed in the section itself: "173(1) Every investigation under this chapter shall be completed without unnecessary delay and, as soon as it is completed the officer in charge of the police station shall- (a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the name of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (2) * * * (3) * * * (4) After forwarding a report under this section, the officer-in-charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused free of cost a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under section 164 and the statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses." The provisions of sub-section (4) of section 173 are manifestly clear. It makes it obligatory on the part of the officer-in-charge of the police station to supply to the accused before the commencement of inquiry or trial copies of the statements of all persons recorded under section 161(3), Criminal Procedure Code, whom the prosecution proposes to examine as its witnesses. The object of the provision is to put the accused on notice of what he has to meet at the inquiry or trial. 22. It is clear from the evidence of P.W. 16 that the Investigating Officer Mr. The object of the provision is to put the accused on notice of what he has to meet at the inquiry or trial. 22. It is clear from the evidence of P.W. 16 that the Investigating Officer Mr. Roberts had recorded the statement of D. Nageswara Rao (P.W. 5) while he figured as an accused in the case. It is not disputed that the statement recorded from P.W. 5 in his capacity as an accused by Mr. Roberts was not supplied to the accused before the commencement of the trial. Nageswara Rao, who was A-2 in the case was tendered pardon on 26th July, 1971 by the Special Judge. It is true that the pardon was tendered after the charge-sheet was filed in the case. The trial of the case commenced on 29th March, 1972. But before the commencement of the trial, the statement of P. W. 5 recorded by the Investigating Officer. Mr. Roberts, was not supplied to the accused. On the other hand, when the Defence Counsel attempted to cross-examine the approver, P.W. 5 when he was in the witness-box, with reference to his earlier statement, the Public Prosecutor raised an objection on the the ground that the statement recorded by Mr. Roberts while P. W. 5 was an accused was hit by section 162, Criminal Procedure Code. The learned Judge upholding the objection wrote in the deposition as follows; Question: You have stated before Mr. Roberts, that you do not know anything about this? (The learned Public Prosecutor took an objection for recording the answer for this question on the ground, that the same is hit by section 162, Criminal Procedure Code. The statement said to have been recorded by the police Officer is not before the Court. It is not known from what material the advocate is putting this question and in these circumstances, if this witness who was an accused in the case, was questioned as an accused, then his statement to the Police Officer is not admissible. In either way, I think, the objection of the Public Prosector is tenable.) Obviously both the Public Prosecutor as well as the Special Judge were under the impression that the statement recorded from P.W. 5, while he was still an accused, by Roberts was inadmissible in evidence and therefore it could not be made use of for the purpose of cross-examination. Apparently there was misunderstanding of the law by the Public Prosecutor and the learned Special Judge as to the scope of the word ‘any person’ in section 162(1). Criminal Procedure Code. They felt that section 162, Criminal Procedure Code, did not apply to the statements recorded from accused persons and applied only to the persons examined as witnesses. The Privy Council in Narayanaswami v. Emperor1 held that the expression ‘any person’ in section 162, Criminal Procedure Code is wide and general and should include not only a witness but also the accused person and therefore, the proviso to section 162, Criminal Procedure Code was attracted to cross-examine a person who was an accused in the case when that person appeared as a witness in the case. This decision has also been followed by the subsequent decisions rendered by the Supreme Court There can therefore, be no doubt that the accused in the case were entitled to cross-examine P.W. 5 with reference to his earlier statement recorded from him while he was an accused. 23. It is however, the contention of the learned Counsel for the State, that an approver is not a person proposed to be examined by the prosecution as a witness within the meaning of section 173(4), Criminal Procedure Code. According to him, the word ‘proposes’ connotes only an ‘intention to examine’ and that the prosecution may abandon that intention at any time and may not examine, But he argues, that there was no such option left for the prosecution in the case of an approver and that the prosecution was bound to examine the approver under section 337(2). Criminal Procedure Code. We are not fascinated by the lucid and fluent argument of the learned Counsel. 24. According to the Concise Oxford Dictionary, Fifth Edition, the word ‘propose’ means: "put forward for consideration, propound, set up as an aim, nominate, intend etc. Criminal Procedure Code. We are not fascinated by the lucid and fluent argument of the learned Counsel. 24. According to the Concise Oxford Dictionary, Fifth Edition, the word ‘propose’ means: "put forward for consideration, propound, set up as an aim, nominate, intend etc. In Chambers’ Twentieth Century Dictionary the following meanings for the word ‘propose’ are given: "to put forward or exhibit, to put before one’s own or another’s mind, to propound; to face; to imagine, suppose: to offer for consideration or acceptance: to formulate as something to be executed, to proffer; to offer; to suggest or lay before one as something to be done; to purpose or intend; to move formally; to nominate;" The conundrum that arises is whether it can be said that in a criminal trial the prosecution did not intend to examine or nominate an approver as a witness on their behalf till the commencement of the trial. Rules of evidence and procedure are evolved to ensure a fair trial and ensure speedy and justice to the accused. It is the duty of the criminal Courts to so interpret these Rules as not to cause any serious dent on the terrain of a fair trial. In the discipline of criminal law, room must be left for play in the joints. It is not possible to formulate a series of precise and exact definitions and confine every situation within a straight jacket thus constructed. The raw material with which the Code of Criminal Procedure has to deal is for too complex to be susceptible of exact logical definition. There was criminal law before there were criminal Courts. Criminal law is as old as mankind. Of all branches of the law that which most closely touches and concerns the common man in his daily round of activities is the criminal law. With the advancement in the culture of mankind, the mode and spirit in which the Rules of evidence and procedure are administered assume greater importances. They should be so interpreted and administered as to command proper reference for our system of administration of criminal Justice. In our opinion, S. 173(4), Criminal Procedure Code, requires to be so interpreted and administered. 25. They should be so interpreted and administered as to command proper reference for our system of administration of criminal Justice. In our opinion, S. 173(4), Criminal Procedure Code, requires to be so interpreted and administered. 25. The object of tendering pardon to an accomplice is to secure the evidence of such a person and to encourage him to give the full details of the crime by removing any fear of the prosecution, particularly in a case where it is otherwise impossible to establish the guilt of the other accused on the other evidence available in the case. If the prosecution had no intention to examine an approver before the commencement of the trial, the prosecution would have definitely opposed the grant of pardon. There is nothing in the Code which would compel the police to produce an accused person for the tender of pardon, who is intended to be examined as a witness in the case. It is only when the prosecution decides to examine the accused person as a witness that he is produced for the tender of pardon. In this case, it is clear from the order of the Special Judge tendering pardon to P.W. 5 that the prosecution did not oppose the petition filed by the accused for tendering pardon under section 8 of the Criminal Law Amendment Act. On the other hand, the Public Prosecutor stated that his evidence was necessary and would fortify the prosecution case. It is no doubt true that under section 337(2), Criminal Procedure Code, every person accepting a tender of pardon shall be examined as a witness. But that does not mean that the prosecution had no discretion to nominate an accused person as an approver before the pardon was tendered. Therefore, we have no hesitation in holding that the approver P.W. 5 was a person proposed to be examined by the prosecution as a witness in the case within the meaning of section 173(4), Criminal Procedure Code, and that a statutory duty was cast on the police to supply, before the commencement of the trial, a copy of the statement recorded from the approver, P.W. 5 while he was an accused in the case. 26. 26. Then that leads inevitably to the question as to what is the effect of the non-supply of the statement of the approver recorded during the course of the investigation to the accused before the commencement of the trial. The learned Counsel for the accused placing strong reliance upon a decision of this Court in Sharaf Shah Khan v. State of Andhra Pradesh1 submits that 1 he accused had been denied the valuable right of effective cross-examination of P.W. 5 and that the evidence of the approver therefore ought to be excluded altogether for the breach of the proviso to section 162, Criminal Procedure Code. He submits that in the absence of any other evidence in the case, the accused are entitled to an acquittal. He pleads that the accused has undergone a protracted trial and it is not a proper case where it should be sent back for cross-examination of the approver after furnishing to the accused the earlier statement recorded from P.W. 5. That was a case where the learned Defence Counsel specifically complained that the statement of the approver recorded before he was taken as approver be also supplied stating that the prosecution deliberately denied the existence of any statement recorded during the course of the investigation while the approver was still in the position of an accused. The learned Judges observed: "The existence of the statement recorded during the investigation was disclosed only at about the time of closing the prosecution evidence while P.W. 234, the investigating officer was under cross-examination. It is clear that the defence were anxious throughout to obtain a copy of the statement. It was pressed until the investigating officer was obliged to disclose its existence." Therefore, in that case the learned Judges on the question whether the case should be sent back held: "On the question whether the case should be sent back for the cross-examination of the approver, as the prosecution deliberately withheld the statement in question, we do not think is proper to invoke our powers under section 428, Criminal Procedure Code. It is regrettable that the trial Judge chose to reject the evidence of the approver as being unreliable instead of rectifying the defect which was disclosed, when the evidence of P.W. 234 was taken. But it would not be just to reopen now the prolonged trial, which lasted for over nine months. It is regrettable that the trial Judge chose to reject the evidence of the approver as being unreliable instead of rectifying the defect which was disclosed, when the evidence of P.W. 234 was taken. But it would not be just to reopen now the prolonged trial, which lasted for over nine months. We are, therefore, constrained to exclude the approver’s evidence and to deal with the appeals on the footing that it is of no value to the prosecution." We do not think that the aforesaid decision can be properly invoked and applied to the facts of this case. In that case the prosecution deliberately denied the very existence of the earlier statement of the approver. But in this case it was not so. The Prosecutor as well as the learned Judge felt no doubt erroneously that the accused was not entitled to the supply of the earlier statement. The decision in Noor Khan v. State of Rajasthan2, is quite apposite. In this case, the Supreme Court observed: "The provisions of section 162 provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of copies to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under section 161 the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant." Let us now turn to the facts in this case. The statement of P.W. 5 in his capacity as A-2 was recorded in July, 1968 by the police in the course of investigation. Charge-sheet was filed in the case before the Special Judge on 15th December, 1970. A-2 was tendered pardon by the Special Judge on 26th July, 1971. The trial of the case commenced on 29th March, 1972. Before the commencement of the trial, the statement recorded from P.W. 5 during the course of investigation was not supplied to the accused. Charge-sheet was filed in the case before the Special Judge on 15th December, 1970. A-2 was tendered pardon by the Special Judge on 26th July, 1971. The trial of the case commenced on 29th March, 1972. Before the commencement of the trial, the statement recorded from P.W. 5 during the course of investigation was not supplied to the accused. When P.W. 5 was in the witness box during the trial he was sought to be cross-examined with reference to his earlier statement. The Public Prosecutor opposed the cross-examination with reference to the earlier statement on the ground that the earlier statement was totally inadmissible as it was a statement made by him as an accused person. The objection was upheld by the learned Judge also under an erroneous impression and being unaware of the correct position of law. The main piece of the evidence in the case against the accused consists of the evidence of P.W. 5. If his evidence is eschewed, there appears to be no other evidence in the case on which the conviction of the accused could be sustained. In the circumstances of the case, we think it proper that an opportunity should be provided to the accused to cross-examine the approver with reference to his earlier statement. The only right course open to us, in the circumstances of the case is to reverse the judgment of the learned Special Judge, set aside the convictions and sentences of the accused and order a re-trial of accused Nos. 1 and 3. We accordingly do so. We further direct that the earlier statement recorded from the approver P.W. 5 during the course of the investigation by Mr. Roberts be supplied to the accused before the commencement of the re-trial. We should however make it clear that we have not expressed our opinion on the merits of the matter in view of the aforesaid conclusion reached by us.