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2009 DIGILAW 1652 (PNJ)

Balwinder Singh v. State Of Punjab

2009-09-18

MOHINDER PAL

body2009
Judgment Mohinder Pal, J. 1. This judgment will dispose of the afore-mentioned petitions as they are directed against the same order dated 23.4.2004 passed by the Additional Sessions Judge, Hoshiarpur, whereby application filed by Balwinder Singh (petitioner in Criminal Revision No. 1032 of 2008 and respondent No. 1 in Criminal Revision No. 1552 of 2008) under Section 307 . of the Code of Criminal Procedure (for short the Code) to allow him (Balwinder Singh) to get his statement recorded as an Approver and for tender of pardon to him was declined. 2. Along with Criminal Revision No. 1552 of 2008. an application bearing Criminal Miscellaneous, No. 36902 of 2008 has been filed under Section 5 of the Limitation Act for condonation of delay of 27 days in filing the revision petition. For the reasons stated in Criminal Miscellaneous No. 36902 of 2008. which is supported by an affidavit, the same is allowed and delay of 27 days in filing Criminal Revision No. 1552 of 2008 is condoned. 3. Criminal Revision No. 1032 of 2008 has been filed by accused Balwinder Singh whereas Criminal Revision No. 1552 of 2008 has been filed by the State of Punjab. 4. Balw inder Singh, who was facing prosecution along with his co-accused in case F.I.R. No. 224 dated 30.10.2005 under Sections 302/120-8/34 of the Indian Penal Code and Section 25 of the Arms Act, 1959 registered at Police Station Mukerian, District Hoshiarpur, filed an application under Section 307 of the Code to allow him to get his statement recorded as an Approver and for tender of pardon to him. The Additional a Sessions Judge, Hoshiarpur, declined the said prayer of Balwinder Singh holding that pardon cannot be granted to him since in that case It would involve the risk of Balwinder Singh escaping from the punishment at the expenses of the other accused. 5. Section 308 of the Code provides that where, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307 of the Code, the Public Prosecutor certifies that in his opinion such person has. 5. Section 308 of the Code provides that where, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307 of the Code, the Public Prosecutor certifies that in his opinion such person has. either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for anv other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence. A perusal of these provisions of Section 308 of the Code reveals that the trial Court is not powerless in case the accused seeking to get his statement recorded as an Approver and seeking tender of pardon to him retraces from the condition that he would make full and true disclosureof the whole circumstances within his knowledge regarding the crime. The trial Court is within its powers to take appropriate action on the basis of evidence before it. 6. In Criminal Revision No. 1552 of 2008 filed by the State of Punjab against the order dated 23.4.2004 passed by the Additional Sessions Judge, Hoshiarpur, declining prayer of Balwinder Singh to allow him to get his statement recorded as an Approver and for tender of pardon to him, in para No. 7 of the grounds of revision, has averred as under :- " That the case of the prosecution is based on circumstantial evidence and no ocular version of the scene of the crime will be available in this case. So true disclosure in such type of blind murders or heinous crime is very essential for the just decision of the case. It is further Submitted that the Investigating as well as Prosecuting Agency propose that tender of pardon may be given to accused Balwinder Singh who is not a main accused on the condition that he should make full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned for the commission of murder of Kuldip Singh (deceased)." 7. A perusal of the above-quoted averments made by the State makes it abundantly clear that the prosecuting agency had joined Itself In the request made by Balwinder Singh. A perusal of the above-quoted averments made by the State makes it abundantly clear that the prosecuting agency had joined Itself In the request made by Balwinder Singh. Under the circumstances, the learned trial Judge was not expected to consider possible weight of the apr provers evidence even before it was given, as has been done in this case by the trial Judge. Whether the approver had played a lesser or greater role in the commission of the crime is immaterial and it is for the prosecution to examine this aspect from the point of view of the Interest of the case. It is the prerogative of the prosecution. The Honble Supreme Court, in the case of Lt. Commander Pascal Fernandas v. State of Maharashtra and others, AIR 1968 Supreme Court 594, inter alia, observed that ordinarily it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly applies to the trial Judge, he must first refer the request to the prosecuting agency. It is not for the trial Judge to enter the ring, as a veritable director of prosecution. The power which the trial Judge exercises is not on his own behalf but on behalf of the prosecuting agency, and must, therefore, be exercised only when the prosecution joins in the request. The impugned order passed by the trial Judge shows that he did not bear the abovementioned considerations in mind while passing the same and, instead, took on himself something from which he should have kept aloof. 8. For the aforesaid reasons, both, these petitions are disposed of by remanding the matter to the trial Court with the direction to dispose it off in accordance with law and keeping in view what has been observed above. The Registry is directed to send a copy of this order to the trial Court forthwith.