JUDGMENT Hon’ble J.J. Munir, J.—This is a habeas corpus petition seeks to question the continued detention of the petitioner Ramzan Ali (hereinafter referred to as ‘the detenue’) under an order dated 14.6.2017 passed by the District Magistrate, Shahjahanpur (hereinafter referred to as the “Detaining Authority”) under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the ‘Act’). The order dated 14.6.2017 shall hereinafter be referred to as the “detention order”. 2. The detention order has its genesis in an incident that occurred on 12.4.2017 at 6.30 in the evening hours and was reported to the police by the victim one Sri Ankur Saini, Branch Manager, Bank of Baroda, Sindhauli Branch, Shahjahanpur, through a written first information report dated 12.4.2017 and registered by the police at 20:55 hours as case crime No. 740 of 2017, under Sections 147, 148, 149, 323, 307, 341, 353, 352, 427, 506 IPC, P.S. Sindhauli, District Shahjahanpur. 3. The occurrence that moved the sponsoring authority to recommend the petitioner’s detention and finally the Detaining Authority to pass the detention order as per first information lodged by Ankur Saini is to the effect that the informant on 12.4.2017 after winding up all business of the day at his Branch left the bank premises for his home at 6.30 p.m. riding his motorcycle. As he travelled a distance of 1.5 Kilometers from Sindhauli to Shahjahanpur a white coloured Mahindra Bolero SUV overtook him and the driver signaled him to stop saying (words in Hindi Vernacular) **eSaustj lkgc jksdksA**. As soon as the informant pulled up his motorcycle to a halt on his side of the road, 4-5 men alighted from vehicle wielding sticks (Lathi and Danda) and a rifle. The man with the rifle fired upon the informant which was a close miss. His companions wielding the sticks showered Lathi blows on the informant. Thereafter the assailant opened indiscriminate fire. It is further said in the information that informant knew the assailant well. He is the husband of the sitting Pradhan of village Bhatpura Rasoolpur, Ramzan Khan (Pradhan Pati). In the meanwhile, other employees working with the informant in the Branch also arrived and passers by flocked at the scene of occurrence. At this point of time the assailants boarded their vehicle and escaped saying (in Hindi Vernacular) **fd iz/kku dk dke ugha djksxs rks ftUnk ugha cp ikvksxs** . In the meanwhile, other employees working with the informant in the Branch also arrived and passers by flocked at the scene of occurrence. At this point of time the assailants boarded their vehicle and escaped saying (in Hindi Vernacular) **fd iz/kku dk dke ugha djksxs rks ftUnk ugha cp ikvksxs** . The informant reported that in consequence of the assault two mobile phones owned by him were shattered and he was undergoing medical treatment for the injuries sustained at the District Hospital, Shahjahanpur. It was requested on the basis of the allegations hereinbefore detailed that a case be registered against the accused and they be brought to justice, particularly so, as they had assaulted a Government servant obstructing him in the discharge of his duties by waylaying him while returning from his duties inasmuch as proceeding to his station of work and back home were part of his duty. 4. The petitioner who was wanted in connection with the crime above detailed surrendered in Court on 31.5.2017 and was remanded to judicial custody. He was lodged in the District Jail, Shahjahanpur when the detention order was served upon him alongwith the grounds of detention through the Jail Superintendent. 5. It appears that events of 14.6.2017 happened at almost lightening pace between the sponsoring authority at the various echelons of hierarchy and the Detaining Authority. The process was set in motion by a very copious report that depicts in graphic detail the incident of 12.4.2017 and its immediate impact in the locale submitted by S.H.O. P.S. Sindhauli, District Shahjahanpur to the higher police functionries. The report carries not only details of the incident and its impact but the statements of members of the public who had become chance witnesses as also those who were placed nearby in connection with their business/work or their ordinary place of residence. The report carries enumeration of the petitioners criminal history running into as many as 18 criminal cases with a summery of some of them that had in the past led to maintenance of the public order being adversely affected. 6. It is imperative to refer to the information regarding the incident leading to the detention order in some detail as reported by S.H.O. P.S. Sindhauli in his report dated 14.6.2017 sponsoring the petitioner’s detention submitted to the S.P. Shahjahanpur. 6. It is imperative to refer to the information regarding the incident leading to the detention order in some detail as reported by S.H.O. P.S. Sindhauli in his report dated 14.6.2017 sponsoring the petitioner’s detention submitted to the S.P. Shahjahanpur. The S.H.O. has mentioned that the incident involved bank employees of which he had information at the station on 12.4.2017 through a police informer prior to registration of the first information report. The information received by the S.H.O. was to the effect that the Branch Manager, Bank of Baroda, Sindhauli Branch had been waylaid at the Puvayan-Shahjahanpur Road near village Paira by the petitioner Ramzan Ali who was a Goonda with a criminal background and that he alongwith his companions was beating up the Branch Manager as the information came in. It was also reported to the S.H.O. that on account of fear and terror that struck the general public who were working in the adjoining fields, they went into hiding. Employees of the electricity corporation who were in duty at the electricity Sub-Station located nearby abandoned duty and likewise went into hiding. The road was completely obstructed in consequence of the terror unleashed by Ramzan Ali against whom 9-10 cases of similar nature had already been registered but in none of which he had been arrested on account of his highhanded ways with the police also. Public order, according to the S.H.O, was completely shattered and to regain control of the situation additional force from the station was detailed to the place of occurrence. Record of the said incident finds mention in G.D. No. 39 recorded at 19.20 hours on 12.4.2017, an extract of which was appended as Annexure-3 to the report submitted by the S.H.O. 7. The S.H.O. goes on to record in his report that post occurrence, information was received at the local police station that the petitioner Ramzan Ali who is husband of the Pradhan (Pradhan Pati) of village Bhatpura Rasoolpur is a Goonda and that on account of his fear and terror natives of his village and others nereby cannot muster courage to speak up; that after assaulting the Bank Manager he went back to his native village, and, in a pre-planned manner had broken doors of his house in order to get a false case registered against the bank employees. Natives of the village seeing Ramzan Ali breaking and damaging doors of his house retreated to the safety of their homes in consequence of which an eerie silence gripped his village. It is also recorded that natives who were engaged in the routine of the daily business abandoned work and retreated to the safety of their homes. On this information, police force was detailed to the said village. It is also recorded that after the aforesaid steps were taken, the S.H.O. returned to station and a detailed information was recorded vide G.D. No. 6, an extract of which is annexed as Annexure 5 to the report by the S.H.O. 8. It is also recorded in the report that in consequence of the incident on 13.4.2017 bank employees for the fear caused by the petitioner Ramzan Ali went off work, and, on this information spreading an atmosphere of fear and terror gripped members of the public in the locality and adjoining areas; shops, business establishments, Bazar etc were closed as a result of bank transactions coming to a standstill. The general public on account of closure of bank business leading to non-withdrawal of funds found themselves deprived of their daily needs. Public order thus went into completely disarray. 9. It is also recorded that on news of the incident being reported in prominent dailies bank employees in general struck work which, in turn, severely affected business depriving members of the public of their daily requirements. It is also recorded that the petitioner on 16.4.2017 went to his native village alongwith his companions armed with fire arms which they brandished to the natives with a warning that in case anyone dared to speak to the police he would face fatal consequences. The open words and acts of threat to the native of his village led to a widespread atmosphere of fear and terror in petitioner’s native village on 16.4.2017 in consequence whereof the villagers quietly withdrew to the safety of their homes throwing the even tempo of life out of gear. 10. The S.H.O. recorded the statement of the victim regarding the details of the assault that left him near dead, besides other bank employees and members of the public. 10. The S.H.O. recorded the statement of the victim regarding the details of the assault that left him near dead, besides other bank employees and members of the public. The report carries a detailed history of 18 cases specifically mentioning those that had adversely affected the public order in the past and requested the Superintendent of Police to recommend a case to the Detaining Authority for the petitioner’s detention under the Act. 11. The report of the S.H.O. was endorsed by the C.O. to the Additional Superintendent of Police, City, Shahjahanpur who in turn endorsed it with his report to the S.P. Shahjahanpur. Each of the reports at different levels of the sponsoring authority are annexed as Annexure-4 to the petition. All the reports are made on 14.6.2017 and on the basis of these reports the Detaining Authority has passed the detention order also on 14.6.2017 supported by grounds of the said date. The detention order the grounds are annexed as Annexure-1 to the petition. The detention order received approval of the State Government on 22.6.2017 under Section 3(4) of the Act, a copy of which is annexed as Annexure-8 to the petition. 12. The petitioner submitted his representations numbering four, all dated 20.6.2017 addressed to the District Magistrate, the State Government the Advisory Board, and, the Central Government through the Jail Superintendent by submitting these to the office of the Jail Superintendent on 20.6.2017. The petitioner’s representation to the Advisory Board was referred to them on 22.6.2017; the representation addressed to the State Government was received by them on 30.6.2017; the representation addressed to the District Magistrate was rejected on 26.6.2017 while that addressed to the State Government was rejected on 12.7.2017. The Central Government rejected his representation on 17.7.2017. The representation addressed to the Advisory Board was considered by the Board on 13.7.2017 with personal hearing to the petitioner. The Board also turned down petitioner’s representation determined by them in exercise of powers under Section 10 of the Act advising the State Government accordingly. The State Government on the basis of the report of the Advisory Board approved detention for the petitioner for a period of three months from the date of the detention order, by an order dated 2.8.2007 annexed as Annexure-9 to the petition. The State Government on the basis of the report of the Advisory Board approved detention for the petitioner for a period of three months from the date of the detention order, by an order dated 2.8.2007 annexed as Annexure-9 to the petition. The State Government on further report of the Advisory Board under Section 11 of the Act extended the period to six months from the date of the detention order. The said order is annexed as Annexure-2 to the counter-affidavit filed on behalf of the State to which allusion would be made in some further detail hereinafter. 13. This petition was filed on 5th September, 2017 and came up for admission on 7.9.2017 when this Court passed the following orders: “Heard Sri D.S.Mishra, learned counsel for the petitioner and Sri I.P.Srivastava, learned AGA for the State. Learned AGA as well as learned counsel for Union of India shall file counter-affidavit within two weeks. Rejoinder-affidavit, if any, may thereafter be filed within one week. List in the week commencing from 3rd October, 2017 before the appropriate Bench.” The aforesaid order thus constitutes rule nisi issued to the respondents to show-cause in this habeas corpus petition. 14. In answer to the rule nisi issued by this Court the earliest return was filed on behalf of the Detaining Authority that is an affidavit of Narendra Kumar Singh, the incumbent District Magistrate who passed the detention order. The affidavit appears to have been sworn at Shahjahanpur on 22.9.2017, and, formally signed by the A.G.A. on 4.10.2017. It was filed in Court on 9.10.2017 and taken on record. Thereafter counter-affidavits on behalf of the State and the Union of India were filed together on 24.10.2017 in Court and were accepted on record. The counter-affidavit on behalf of the State is an affidavit sworn on 23.10.2017 by Suneet Kumar Dwivedi posted as Section Officer, Home (confidential) Section-5, U.P. Civil Secretariat, Lucknow. The counter-affidavit on behalf of the Union of India is an affidavit sworn on their behalf by Rajesh Ranjan, Under Secretary, Ministry of Home Affiairs Government of India, New Delhi. The said affidavit has been sworn on 10.10.2017 before a notary public at Delhi and the counter-affidavit has been signed by the learned AGA on 24.10.2017. The date on which it was filed before the Court is not discernable. The said affidavit has been sworn on 10.10.2017 before a notary public at Delhi and the counter-affidavit has been signed by the learned AGA on 24.10.2017. The date on which it was filed before the Court is not discernable. A counter-affidavit on behalf of the Superintendent, District Jail, Shahjahanpur has been filed by one B.R. Verma, presently posted as Senior Superintendent of Central Jail, Naini, District Allahabad. The said affidavit has been sworn at Allahabad on 25.10.2017 and is available on record. The order sheet does not indicate the precise date on which it was filed. There is a supplementary-affidavit also filed on behalf of the petitioner being an affidavit dated 18.9.2017 which is on record. The petitioner has filed a rejoinder-affidavit sworn on 24.10.2017 in response to the counter-affidavit filed on behalf of the Detaining Authority and another rejoinder-affidavit also sworn on 25.10.2017 filed in response to the counter-affidavit filed by the State Government. Both the aforesaid rejoinder-affidavits are available on record. 15. We have heard Sri Daya Shankar Mishra, learned counsel for the petitioner, Sri Ali Murtaza, learned Additional Advocate General on behalf of Respondent Nos. 1, 2 and 3 and Sri Dhurva Kant Chaturvedi, learned counsel appearing on behalf of Union of India. We have carefully perused the records of the case relating to the petitioner’s detention under the Act questioned through this petition including all affidavits filed by parties together with the documents annexed. 16. Learned counsel for the petitioner has assailed the detention order as one being beyond the scope of Section 3(2) of the Act inasmuch as the detention order and grounds in support at best make out a case of violation of ‘law and order’ and not ‘public order’. The learned counsel has anchored his case on the ground to pleadings in paragraphs 9 and 24 of the writ petition; there are being reproduced below (in Hindi Vernacular): ^^¼9½ ;g fd ;kph ds fo:) mRrjoknh la[;k 2 }kjk gLrk{kfjr fu:f) vk/kkj fnukafdr 14-06-2017 yksd O;oLFkk ds vuqj{k.k fufeRr ilaxsrj gS rFkk yksd O;oLFkk ds vuqj{k.k fufeRr laxr Hkh ugha gSA ¼24½ ;g fd vkjksfir vijk/k la[;k 740 o"kZ 2017 rFkkdfFkr ?kVuk lkekU; fof/k fo"k;d gS] ek= bruk gh ugha vfirq vk/kkj esa of.kZr vU; vkjksfir vijk/k dh rFkkdfFkr ?kVuk,a] ftuesa ;kph funksZ"k gS] lkekU; fof/k O;oLFkk ls lEcfU/kr gS] os yksd O;oLFkk ds vuqj{k.k fufeRr drbZ laxr] ugha gSA** 17. The aforesaid case of the petitioner has been met by the detaining authority through paragraphs 8 and 20 of the counter-affidavit that read thus: “8. That the contents of paragraph Nos. 6 and 7 of the habeas corpus petition are misconceived hence denied. In reply, it is submitted that the detention order and grounds of detention are not based on political influence and the answering respondent has independently applied his mind and recorded subjective satisfaction. 20. That the contents of paragraph Nos. 23 and 24 of the habeas corpus petition are misconceived hence denied. It is submitted that to constitute an offence under Section 307 IPC, injury is not required but it is the intention to cause death. It was a case of clear breach of public order and this fact has been rejected in the detention order.” 18. The submission that the offence on the basis of which the detention order has been made is nothing but an act constituting a mere violation of law and order and that it does not travel to the arena of ‘public order’ where the power to preventively detain may lawfully be exercised requires some pause and consideration before we move on to determine the worth of other grounds of challenge. 19. It is by now beyond debate for a legal proposition that it is not the intrinsic nature or severity of the act constituting the offence that would determine whether it constitutes a violation of ‘law and order’ or it travels beyond to become a case of violation of ‘public order’. What is determinative of the distinction between the two is the impact the act or the offence creates in the community. A situation where a given act constituting an offence only effects an individual or a family or a few of them, leaving the even tempo of life of the community at large unaffected, it would constitute no more than breach of law and order; the same act, however, in case of changed circumstances on account of all factors extraneous to the act itself disturbes the even tempo of life of the community or has potential to disturb it, would constitute an act affecting public order. 20. 20. This distinction between what would constitute violation of law and order and what would be an act disturbing the maintenance of public order engaged the attention of the Supreme Court in State of U.P. and another v. Sanjay Pratap Gupta @ Pappu and others, 2004 (8) SCC 591 . In paragraphs 12, 13 and 14 of the report in re: State of U.P. (supra) their Lordships after a copious reference to authority on the issue and examine the distinction in fine detail held: “12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. 13. The two concepts have well-defined contours, it being well established that stray and unorganised crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. “Law and order” comprehends disorders of less gravity than those affecting “public order” just as “public order” comprehends disorders of less gravity than those affecting “security of State”. (See Kuso Sah v. State of Bihar, 1974 1 SCC 185 , Harpreet Kaur v. State of Maharashtra, (1992) 2 SCC 177 , T.K Gopal Alias Gopi v. State of Karnataka, 2000 6 SCC 168 and State of Maharashtra v. Mohd. Yakub, 1980 2 SCR 1158 .) 14. The stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the number of acts that matters. Yakub, 1980 2 SCR 1158 .) 14. The stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the number of acts that matters. What has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact.” 21. The aforesaid distinction has been has been succinctly brought out in an earlier decision of this Court in Sant Singh v. District Magistrate, Varanasi, 2000 CriLJ 2230, where in paragraph 7 of the report it has been held thus: “7. The two connotations ‘law and order’ and ‘public ‘order’ are not the words of magic but of reality which embrace within its ambit different situations, motives and impact of the particular criminal acts. As a matter of fact, in a long series of cases, these two expressions have come to be interpreted by the Apex Court. It is not necessary to refer all those cases all over again in every decision for one simple reason that they have been quoted and discussed in earlier decision of this Court dated 14-10-1999 in Habeas Corpus Writ Petition No. 33888 of 1999- Udaiveer Singh v. State of U.P. and the decision dated 1-12-1999 in Habeas Corpus Writ Petition No. 38159 of 1999 Rajiv Vashistha v. State of U.P. (Reported in 1999 All Cri R 2777). The gamut of all the above decisions in short is that the true distinction between the areas of ‘public order’ and ‘law and order’ lies not in nature and quality of the act, but in the degree and extent of its reach upon society. Sometimes the distinction between the two concepts of law and order’ and ‘public order’ is so fine that it overlaps. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore, touch the problem of ‘law and order’, while in another it might affect ‘public order’. The act by itself, therefore, is not determination of its own gravity. It is the potentiality of the act to disturb the even tempo of the community which makes it prejudicial to the maintence of ‘public order’. 7A. The act by itself, therefore, is not determination of its own gravity. It is the potentiality of the act to disturb the even tempo of the community which makes it prejudicial to the maintence of ‘public order’. 7A. We have been taken through the decisions of the Apex Court in Smt. Angoori Devi for Ram Ratan v. Union of India, AIR 1989 SC 371 : 1989 Cri LJ 950 T. Deoki v. Government of Tamil Nadu, AIR 1990 SC 1086 , Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State of Maharashtra, 1992 AIR SCW 835 AIR 1992 SC 979 , Tarannum (Smt.) v. Union of India, 1998 SCC (Cri) 1037 : AIR 1998 SC 1013 and the Full Bench’decision of this Court in Shesh Dhar Misra v. Superintendent Central Jail Naini, 1985 All LJ 1222, Arvind Kumar Shukla v. State of U.P., 1985 ALJ 1259, as well as Division Bench decision of this Court in Harish Kasana v. State of U.P., 1998 (37) ACC 724 1999 All LJ 598 and Atiq Ahmad v. Chief Minister State of U.P. decided by this Court on 5-10-1998 to support the contention that present is the case in which there was merely a breach of ‘law and order’ and the acts of the petitioner, if at all, were not prejudicial to the maintenance of ‘public order’. At the outset, we would do better to explode the myth that no single act can give rise to ‘public disorder’. Dealing with this question as to whether one solitary instance can be the basis of an order of detention, their Lord-ships of the Apex Court in Smt. Bimla Rani v. Union of India, 1989 (26) ACC 589 SC observed that the question is whether the incident had prejudicially affected the ‘public order’. In other words, whether it affected the even tempo of the life of the community. In Alijan Mian v. District Magistrate Dhanbad, 1983 (3) SCR 930 AIR 1983 SC 1130 it was held that even one incident may be sufficient to satisfy the detaining authority in this regard, depending upon the nature of the incident. Similar view has been expressed in the host of other decisions. In Alijan Mian v. District Magistrate Dhanbad, 1983 (3) SCR 930 AIR 1983 SC 1130 it was held that even one incident may be sufficient to satisfy the detaining authority in this regard, depending upon the nature of the incident. Similar view has been expressed in the host of other decisions. The question was answered more approprietly and with all clarity in the case of Attorney General of India v. Amratlal Prajivandas, AIR 1994 SC 2179 , wherein the Apex Court ruled that it is beyond dispute that the order of detention can be passed on the basis of a single act. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudical activities. It cannot be said as a principle that one single act cannot be constitued the basis for detention. Thus, the argument of learned counsel for the petitioner that since it is solitary incident of the petitioner, he deserves sympathy, is rejected. Now the law, as it stands, is that even one solitary incident may give rise to the disturbance of ‘public order’. It is not the multiplicity but the fall out of various criminal acts. Though there is consistency in the various decisions of the Apex Court about the interpretation of the expressions of ‘law and order’ and ‘public order’ undue insistence on the case law is not going to pay any dividend as each case revolves round its own peculiar facts and has to be viewed in the light of the various attending factors. It is difficult to find a case on all fours with the case in hand.” 22. The law summarized in re: Sant Singh (supra) says in the closing lines of the paragraph extracted that law on the issue being well-settled each case turns on its peculiar facts, and, therefore, the issue whether a given act constitutes a violation of public order or merely transgresses ‘law and order’ has to be determined in the background of relevant attendant factors. We are in respectful agreement also with the aforesaid view of their Lordships. Our task, therefore, is to determine whether the facts in hand discernible from the detention order, the ground in support, and, the material on which grounds are based, constitute merely infraction of law and order or an act that vitiates public order. We are in respectful agreement also with the aforesaid view of their Lordships. Our task, therefore, is to determine whether the facts in hand discernible from the detention order, the ground in support, and, the material on which grounds are based, constitute merely infraction of law and order or an act that vitiates public order. We are content to note that our task in this regard is not an arduous one for the facts that emerge from the grounds of detention and the material in support leave us in no manner of doubt that the act of the petitioner leading to the detention order is decidedly one that has potential to disturb the even tempo of life of the community. 23. It is not our province to determine whether the facts narrated in the grounds and the material in support are correct or not; truthful or false. 24. All that we are required to see is those facts and the materials as they appear on record constitute an act of violation of public order or have the potential to vitiate the same or do they just constitute infraction of the law and order. The grounds of detention clearly disclose that the act of the petitioner leading to the detention order in waylaying the Branch Manager of the Bank of Baroda in the evening hours of 12.4.2017 and severely beating him up in public view besides attempting to shoot him that left him near dead on a public road led to widespread anger and insecurity amongst bank employees as also the general public. It is also recorded in the grounds that members of the public and employees of the State who witnessed the occurrence took to their heels abandoning their respective station of duty or business. Villages nearby were overtaken by an atmosphere of fear and terror. In consequence of the occurrence the entire life of the community in the township of Sindhauli was dislocated with closure of shops and other establishments that, in turn, adversely affected business in the entire township. So much was the impact of the occurrence that additional police force had to be deputed in Sindhauli to maintain public order. In consequence of the occurrence the entire life of the community in the township of Sindhauli was dislocated with closure of shops and other establishments that, in turn, adversely affected business in the entire township. So much was the impact of the occurrence that additional police force had to be deputed in Sindhauli to maintain public order. The precise words employed in the relevant part of grounds of detention read as under (in Hindi vernacular): ^^vkids }kjk fd;s x;s bl d`R; dks ysdj cSad deZpkjh@{ks= dh turk esa Hkkjh vkdzks'k QSy x;k rFkk turk esa ng'kr dk ekgkSy O;kIr gks x;kA turk ds yksx@jkT; deZpkjh tks ?kVuk LFky ds vklikl vius dk;Z dks dj jgs Fks Mj ds dkj.k Hkkx x;sA vklikl ds xkaoks esa ng'kr dk ekgkSy O;kIr gks x;kA ?kVuk ds izfr'kks/k esa dLck fla/kkSyh esa nqdku ,oa izfr"Bkuks dk O;kikj izHkkfor gqvkA fla/kkSyh dLcs dh yksd O;oLFkk ds vuqj{k.k esa vfrfjDr iqfyl cy M~;wVh ij yxk;k x;kA** 25. The aforesaid facts recorded in the grounds of detention are based on the report of the sponsoring authority in particular the report of the S.H.O. P.S. Sindhauli dated 14.6.2017 that has as many as 31 documents appended to it as material in support of the facts mentioned therein. The report of the S.H.O. Sindhauli was submitted to the S.P. Shahjahanpur. The facts stated in the said report and the material on which it is founded leaves us in no manner of doubt that the act of the petitioner leading to the occurrence, particularly bearing in mind his criminal history proximate in point of time enumerated under heads A, B, C, D and E at pages 41 and 42 of the paper book besides that under heads A and B at page 43 of the paper book that the incident in question had a deep, for reaching, disturbing and pernicious impact on the smooth and even tempo of life in the township of Sindhauli where life was completing thrown out of gear as a fall out of the petitioner’s act. As such, we are constrained to hold that petitioner’s act leading to the detention order is one that squarely falls on the pre-determined parameters of law into one that vitiated public order and also had potential of disturbing the maintenance of public order. 26. As such, we are constrained to hold that petitioner’s act leading to the detention order is one that squarely falls on the pre-determined parameters of law into one that vitiated public order and also had potential of disturbing the maintenance of public order. 26. To our mind, therefore, the petitioner’s detention cannot be assailed on the ground that his act in question was not one that affected maintenance of public order as envisaged under Section 3(2) of the Act. 27. This takes us to the next submission of Sri D.S. Mishra, learned counsel for the petitioner which he has pressed with much vehemence and in meticulous detail. Sri Mishra has submitted that detention order is vitiated as there was absence of a real subjective satisfaction of the detaining authority that the petitioner was required to be preventively detained under the Act on the basis of material available on record and that power under the Act was exercised by the Detaining Authority mechanically by merely appending his signatures to the detention order drawn up by other authorities, say the sponsoring authorities or ministerial hands in his office. 28. In order to substantiate his challenge on the ground under consideration, the learned counsel for the petitioner has drawn the attention of the Court to the fact that there is a generic difference between the grounds of detention set out in the detention order and the grounds of detention themselves that support the said order including the materials that supports those grounds. Learned counsel on this score has referred to paragraph 33 of the writ petition as also the contents of the detention order, with reference to words in the last mentioned paragraph of the writ petition that read thus (in Hindi vernacular): ^^---------------------fdlh Hkh ,slh jhfr esa dk;Zokgh djus ls jksdus ds mn~ns'; ls tks fd yksd O;oLFkk ls vuqj{k.k ds fy, vko';d iznk;ks vkSj lsokvks dks cuk;s j[kus ds izfrdwy gks---------------------** 29. Sri Mishra has pointed out that the words employed in the detention order indicates that same has been passed in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of supply and services essential to the community but the grounds of detention do not say or indicate anything which may show that the detention order has also been passed, besides preventing the petitioner from acting in a manner prejudicial to the maintenance of public order, from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. No doubt the learned counsel for the petitioner is right on facts that the detention order mentions both grounds as to “maintenance of public order” and “maintenance of supply and services essential to the community” but the grounds of detention nowhere carry any reference to the petitioner acting in a manner pre-judicial to the maintenance of supply and services essentially to the community; the grounds of detention only speak about maintenance of public order. 30. Learned counsel for the petitioner has submitted that omission and discrepancy as above pointed out between the grounds of detention mentioned in the detention order and those mentioned in the grounds of detention in support thereof clearly go to show that the Detaining Authority has acted mechanically and without application of mind vitiating his subjective satisfaction. It shows according to learned counsel that the Detaining Authority appended his signatures to the detention order and grounds authored by someone else, all of which betray utter lack of application of mind to the most fundamental parameters on which the detention order is founded. 31. Sri Mishra has further buttressed his case of non-application of mind by the Detaining Authority by contending that in the penultimate paragraph of the grounds of detention (at page 23 of the paper book) the Detaining Authority has recorded his subjective satisfaction to exercise powers under the Act by recording it in words to the effect that it is necessary to take action against the petitioner through any kind of proceeding as may prevent “public order and law and order” from being disrupted by him in public interest for which purpose it is necessary to detain him (under the Act). Learned counsel for the petitioner strongly assailed the validity of the Detaining Authority’s subjective satisfaction both in the interest of preservation of “public order” and “law and order” one at the same time. Sri Mishra submits that a combined use of the two expressions “public order” and “law and order” vitiates the subjective satisfaction of the Detaining Authority inasmuch as one of these, that is to say, “public order” is a valid ground to exercise power under the Act whereas the other “law and order” is not a good ground authorizing exercise of the said power. Learned counsel submits that such an order would be bad for the reason that it could not be said in what manner and to what extent the valid and invalid grounds operated in the mind of the Detaining Authority contributing to the formation of a valid subjective satisfaction which is the basis of the detention order. 32. Sri Mishra submits that this was precisely the question that was answered by their Lordships of the Supreme Court in Ram Manohar Lohiya v. State of Bihar, AIR 1966 SC 740 . The said case which is authority of a Constitution Bench of the Supreme Court is a case where their Lordships were called upon to answer the same question in relation to the Defence of India Rules whereunder the order of preventive detention in that case had been made. The order had employed two expressions to found subjective satisfaction of the Detaining Authority under the relevant rule that was R-30(1)(b) of the Defense of India Rule, 1962. The combined expression in the grounds of detention in support of the detention order had mentioned that it was necessary to make that order to prevent the petitioner from “acting in any manner prejudicial to public safety” and “the maintenance of law and order”. Under the rule in the case before their Lordships of the Constitution Bench the ground of preventing the detenue from acting in any manner “pre-judicial to public safety” was relevant whereas “maintenance of law and order,” as is the case here, was not relevant. It was held by their Lordships following an earlier decision in Shibban Lal Saxena v. State of U.P., AIR 1954 SC 179 , that such an order would be a bad. It was held by their Lordships following an earlier decision in Shibban Lal Saxena v. State of U.P., AIR 1954 SC 179 , that such an order would be a bad. The order combining two grounds of detention one valid and the other invalid as above mentioned was held to be bad by their Lordships of the Constitution Bench in re: Ram Manohar Lohiya (supra) in the following words as they appear in paragraph No. 15 of the report extracted below: “(15) For these reasons, in my view, the detention order if it had been based only on the ground of prevention of acts prejudicial to the maintenance of law and order, it would not have been in terms of r. 30(1)(b) and would not have justified the detention. As I have earlier pointed out, however, it also mentions as another ground for detention, the prevention of acts prejudicial to public safety. In so far as it does so, ‘it is clearly within the rule. Without more, we have to accept an order made on that ground as a perfectly legal order. The result then is that the detention order mentions two grounds one of which is in terms of the rule while the other is not. What then is the effect of that ? Does it cure the illegality in the order that I have earlier noticed ? This question is clearly settled by authorities. In Shibban Lal Saksena v. The State of Uttar Pradesh, AIR 1954 SC 179 , it was held that such an order would be a bad order, the reason being that it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction which formed the basis of the order. The-order has, therefore, to be held illegal though it mentioned a ground on which a legal order of detention could have been based. I should also point out that the District Magistrate has not said in his affidavit that he would have been satisfied of the necessity of the detention order only for the reason that it was necessary to detain Dr. Lohia to prevent him from acting in a manner prejudicial to public safety.” 33. I should also point out that the District Magistrate has not said in his affidavit that he would have been satisfied of the necessity of the detention order only for the reason that it was necessary to detain Dr. Lohia to prevent him from acting in a manner prejudicial to public safety.” 33. Learned counsel for the petitioner in support of the same submission that inclusion of an extraneous ground in the ground of detention together with a valid ground vitiates the subjective satisfaction of the Detaining Authority has placed reliance on the authority of the Supreme Court in Kishori Mohan Bera v. State of West Bengal, AIR 1972 SC 1749 . The said case arose in the context of a detention order passed by the Detaining Authority empowered under Section 3(1) and (2) of the Maintenance of Internal Security Act, 1971. The order said that it was necessary to detain the petitioner “with a view to prevent him from acting in a manner prejudicial to the maintenance of the public order or security of the State” [quoted from report in re: Kishori Mohan (supra)]. The order of detention that included a ground not relevant under the statute empowering the Detaining Authority was disapproved by their Lordships in words that appear in paragraphs Nos. 5 and 6 of the report in re: Kishori Mohan (supra) and read as under: “5. Section 3 of the Act empowers the authorities specified therein to detain a person on the specific grounds laid down therein, namely, preventing the person concerned from acting in a manner prejudicial to (i) the Defence of India, relations of India with foreign powers or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community. We are not concerned with a foreigner, to whom Clause (b) of the section also would apply, and therefore, that clause need not detain us. Section 3 thus clearly lays down that the power of detention conferred thereunder can be exercised on any one or more of the said grounds. Obviously, therefore, if the power is exercised on a ground not enumerated there, or in respect of activities which are not germane to any one of those grounds, such exercise would be beyond the jurisdiction of the detaining authority, and therefore, invalid. 6. Obviously, therefore, if the power is exercised on a ground not enumerated there, or in respect of activities which are not germane to any one of those grounds, such exercise would be beyond the jurisdiction of the detaining authority, and therefore, invalid. 6. As aforesaid, the District Magistrate detained the petitioner, as the impugned order recited, on the ground of preventing him from acting in any manner prejudicial to “the maintenance of public order or the security of the State”, here the State of West Bengal. He was satisfied of the necessity of detaining the petitioner from the activities alleged against him in the grounds of detention set out earlier. The Act no where defines the expressions ‘public order’ and ‘the security of the State’, but by a series of decisions, to some of which only we need recall attention, the connotation and the area of each of them has been defined and the meaning to be attached to each of them has by now been well crystalised. So that the authority passing an order of detention can very well know the danger, or the likely danger to any one or more of the objects set out in Section 3 from the activities of the person concerned.” 34. The learned counsel for the petitioner has invited the attention of this Court to paragraph 32 of the writ petition which squarely pleads that the detention order is based on the ground that it mentions satisfaction of the Detaining Authority both on ‘public order’ and ‘law and order’ being disrupted by the Detenue if not detained under the Act and the mention of one irrelevant ground not envisaged by Section 3(2) of the Act shows non-application of mind to relevant material, non-application of mind to the requirement of the statute and also that the order has been authored by someone else than the Detaining Authority who has signed the same mechanically. Contents of paragraph 32 of the writ petition may be gainfully quoted: ^^32- ;g fd ftyk eftLVªsV] 'kkgtgkWiqj ¼mRrjoknh la[;k&2½ }kjk gLrk{kfjr fu:f) vk/kkj ij i`"B la[;k&3 ij uhps ls nwljs izLrj esa] tgkW mudk rFkkdfFkr lek/kku of.kZr gS] ds ifj'khyu ls ;g rF; vius vki esa Hkyh izdkj fl) ,oa izekf.kr gksrk gS fd ;kph dks nf.Mr djus ds mn~ns'; ek= ls gh jklqdk dh /kkjk 3¼2½ ds vUrxZr fu:) fd;k ,oa djk;k x;k gSA ekuuh; U;k;ky; ds le{k bl lanHkZ esa ;gka ;g Hkh of.kZr djuk vius vki esa laxr ,oa vko';d gS fd rFkkdfFkr lek/kku esa ^^yksd O;oLFkk ,oa dkuwu O;oLFkk^^ dks fNUu&fHkUu ls jksdus ds fy, tufgr esa fu:) djus gsrq ;kph dks fu:) fd;k x;k gS] of.kZr gS] tcfd jklqdk dh /kkjk 3¼2½ ds vUrxZr dkuwu O;oLFkk ds vuqj{k.k ds izfrdwy dk;Zokgh djus ls fuokfjr@fu"ksf/kr djus fufeRr fujks/kkns'k ikfjr] gLrk{kfjr o fu"ikfnr fd;s tkus dh vf/kdkfjrk fujks/kd vfèkdkjh dks ugha izkIr gS] blls Hkh ;g vius vki esa Hkyh izdkj fl) ,oa izekf.kr gksrk gS fd ;kph ds okLrfod fujks/kd vf/kdkjh ftyk eftLVªsV] 'kkgtgkWiqj ¼mRrjoknh la[;k&2½ ugha gS] vfirq vU; fdlh nwljs vfèkdkjh@izkf/kdkjh }kjk rS;kj fd;s ,oa djk;s x;s fu:f) vk/kkj ij leku ,d gh frfFk ij uSfefRrd ,oa ;a=or <ax ls gLrk{kj djus dh vkSipkfjdrk ek= gh lEiUu dh x;h gSA** 35. The aforesaid paragraph has been answered in the counter-affidavit of the Detaining Authority vide paragraph 26 that reads as follows: “That the contents of paragraph No. 32 of the habeas corpus petition are misconceived hence denied. Appropriate reply has already been given in the preceding paragraphs of this counter-affidavit.” 36. In substance the contention of the learned counsel for the petitioner on both limbs of attack to the detention order is the same. It is that, that mention of one relevant ground and the other irrelevant in the ground of detention vitiates subjective satisfaction of Detaining Authority; and also, that mention of differing grounds in support would vitiate the subjective satisfaction of the Detaining Authority as in both cases the aforesaid mention of an irrelevant ground or differing grounds in the detention order and grounds in support are a clear index of non-application of mind to relevant facts, material and grounds. 37. 37. We are afraid that the contention of the learned counsel for the petitioner founded on both limbs of his submission is advanced on authority that held field before amendment to the Act was brought about through Act No. 60 of 1984 vide Section 2 of the amending Act w.e.f. 21.6.1984. By the said amendment, Section 5A was introduced in the Act and the same reads as under: “5A. Grounds of detention severable—Where a person has been detained in pursuance of an order of detention [whether made before or after the commencement of the National Security (Second Amendment) Act, 1984 (60 of 1984)] under Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly% (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are” (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid or any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.] 38. One of the earliest decisions noticing the effect of the amendment as aforesaid is that of the Delhi High Court in Mohd. Shahid v. The Administrator, Union Territory of Delhi and others, 1984 (2) Crimes 420, where His Lordship Prakash Narain, C.J. speaking for the Division Bench held: “(8) As we read the newly inserted section, so long as even one valid ground is available the rule will have to be discharged. To our mind there are more than one ground which could be upheld in the present case. For each of the valid grounds it would be deemed under Section 5a as if separate detention orders have been issued. To our mind there are more than one ground which could be upheld in the present case. For each of the valid grounds it would be deemed under Section 5a as if separate detention orders have been issued. Therefore, the argument that if one ground is bad the whole detention falls or continued detention become invalid is no longer available to person similarly situate as the petitioner.” 39. In Attorney General of India v. Amrat Lal Prajivandas and others, 1994 (5) SCC 54 , determining the impact of Section 5A of the Act it has been held that where the detention is based on more than one ground, by a legal fiction it would be deemed that there are as many orders of detention as there are grounds which means that each of such order is an independent one. Paragraphs 48 and 49 of the report in re: in Attorney General of India (supra) are eloquent on the issue. The aforesaid view with regard to the effect of Section 5A of the Act was endorsed again by their Lordships of the Supreme Court in State of U.P. and another v. Sanjay Pratap Gupta @ Pappu and others, (2004) 8 SCC 591 . The question with reference to the contention of the learned counsel now raised before us the answer to which is different in the pre and the post amendment context of the Act was squarely answered by a Division Bench of this Court in Farahad Khan v. State of U.P. and others, 1998 Cr LJ 1028, in the following words: “41. Even taking ground No. 1 to be stale and too remote and not proximate to the order of detention, the detention cannot be held vitiated as it could be sustained on the other grounds in the grounds of detention because subsequent to the rendering of the said judgment by the Apex Court, the National Security Act, 1980 has been amended and Section 5A has been introduced which says that the order of detention under Section 3 of the Act which has been made on two or more grounds shall not be deemed to be invalid or inoperative because one of the grounds is not relevant or not proximately connected with such person on invalid for any other reason whatsoever.” 40. The same issue was also considered by a Division Bench of this Court in Mohammad Rafiq v. State of U.P. and others, 1998 ALL LJ 1461, where in paragraph 11 of the report held as under: “11. It was stated, further, that although the grounds spoke of proceedings under the Goonda Act against Liyaqat and Saniullah, these papers were not supplied to the petitioners and this was certainly a gross violation of the provisions of law as the petitioners, due to non-supply of these papers, were prevented from making proper representations. The learned A.G.A. had stated that if one of several grounds falls due to some reason or the other, or is found to be invalid, the detention order could still be sustained if the other grounds were valid. He made a reference to Section 5A of the Act. A reading of the grounds indicate that in several paragraphs different allegations were levelled touching the alleged past activities of the petitioners and one of the paragraphs only spoke of the proceeding under the Goonda Act. Section 5A of the Act clearly postulates that where a person has been detained in pursuance of an order of detention under the National, Security Act on two of more ground’s, the order of detention shall be deemed to have been made separately on each of such grounds and accordingly such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person, or invalid-for any other reason whatsoever. This section directs that it would be presumed that the detaining authority was satisfied with reference to the remaining grounds to make the order of detention. On this point, the learned counsel for the petitioners further submitted that Section 5A of the Act speaks of the grounds of detention and is an exception on the point of validity of all the grounds. It could not, according to the learned counsel, be read as an exception to the procedure as laid down in Section 8 of the Act and it was argued that the substantive law of detention has the inbuilt checks through the procedural safeguards for the protection of liberty of citizens. It could not, according to the learned counsel, be read as an exception to the procedure as laid down in Section 8 of the Act and it was argued that the substantive law of detention has the inbuilt checks through the procedural safeguards for the protection of liberty of citizens. It was stated that Section 5A simply saved an order under Section 3(2) based on several grounds including an invalid one, but it did not save a deviation from Section 8 of the Act which requires communication of the grounds of detention to the detenu and to afford him an earliest Opportunity of making representation against the order to the appropriate Government. In our view, the legislative right of making a detention law springs from the provisions of Article 22 of the Constitution and any law of detention must always be subject to the safeguards guaranteed under that Article. Detention cannot be made without the procedure laid down by law and the provisions of one section or the other in the Act speaks of procedure only under which a detention is to be made. In the absence of Section 5A, a ground of detention may be challenged for n non-fulfilment of the procedural safeguards as indicated in Sections 8, 10, and 14 of the Act. Section 5A must, therefore, be read as a provision which saves a detention order based on several grounds even though one of such grounds become invalid “any other reasons whatsoever. This clause would include invalidity of a ground of detention or non-compliance of the procedural aspects as well. Thus, Section 5A of the Act could always be read to exclude the invalid piece of ground and to see if the rest of the grounds could sustain a detention order. The non supply of papers concerning the proceeding under the Goonda Act against Liyaqat and Saniullah could, at the best, make that ground invalid but could not affect the other grounds, if otherwise valid. Concerning non supply of papers, it was further stated that in the grounds a lady named Beena, was described as the second wife of Wahid Khan and this fact was seriously challenged. It was stated that Beena was forcibly abducted by Wahid Khan, for which a F.I.R. was lodged against Wahid and the petitioner had demanded copies of that F.I.R.,’ but was not supplied the same. It was stated that Beena was forcibly abducted by Wahid Khan, for which a F.I.R. was lodged against Wahid and the petitioner had demanded copies of that F.I.R.,’ but was not supplied the same. Even if, it is accepted that Beena was not the second wife of Wahid Khan but, was just a woman forcibly dragged into his harem, the act of the petitioners in killing Wahid Khan and to cut off his head and take it away could never be justified under any pretext of law. The relationship between Beena and Wahid Khan has been quoted in the grounds only to indicate that Liyaqat had a lustful eye towards this woman and to put pressure on her or on Wahid Khan, the son of Wahid Khan was kidnapped.” The position of law with regard to Section 5A of the Act was exhaustively reviewed in a Full Bench decision of Madhya Pradesh High Court in Mangal Singh v. State of M.P. and others, while answering certain questions referred to their Lordships. The aforesaid decision is reported in 2016 (159) AIC 445 (M.P., H.C.-F.B.) where A.M. Khanwilkar, C.J. (as is Lordship then was) held: “21. Indisputably, provision such as Section 5-A is an exception to the ordinary rule. To wit, the ordinary rule is that the whole of the subjective satisfaction is vitiated even on one count. The statement of objects and reasons for introducing Section 5-A makes it amply clear that the said provision was necessitated because of the whole of the detention order was being set aside by the Courts even due to one invalid or non-operative ground. To remove that difficulty and to make the special provisions in respect of persons whose detention is necessary for dealing effectively with the exigency, Section 5-A was enacted. 40-A. We are conscious of the fact that what constitutes grounds of detention in the context of Section 5A should stay clear in perspective. A reading of decisions hereinbefore mentioned that are authority on the question of severability of grounds under Section 5A of the Act refer to different things as grounds. Some of these decisions relate to instances of violation/offences committed by a persons as basic facts to mean grounds of detention. Elsewhere, the inference of law drawn from these facts being acts of omission or commission are considered to be grounds for the purposes of Section 5A. Some of these decisions relate to instances of violation/offences committed by a persons as basic facts to mean grounds of detention. Elsewhere, the inference of law drawn from these facts being acts of omission or commission are considered to be grounds for the purposes of Section 5A. Again, it is reference to the specified categories of legal grounds mentioned in Section 3(2) of the Act that is considered to be grounds with reference to Section 5A of the Act. To be more specific under this head of what is a ground all that it means is whether the detention is based on grounds of (security of State) or (maintenance of public order) or (maintenance of supply of services essentially to the community). We think that the principles of severability embodied in Section 5A of the Act apply to all the above described situations that are referred to as grounds of detention in varying context. 45. Learned counsel for the appellants relying upon the provision of Section 306 (iv) (b) Cr.P.C. has strenuously argued before us that the accomplice Dhani Ram was arrested on 8.4.1979 and while he was in jail, he submitted an application dated 30.4.1979 (Ex. Ka 2) to the C.J.M Banda requesting him to tender pardon. On 3.5.1979 itself, R.C. Shukla, the C.J. M Banda passed an order dated 3.5.1979 tendering Dhani Ram pardon on the condition of his making a full and true disclosure of the offence and to every other person concerned in its commission. The accused Dhani Ram accepted it. The acceptance of pardon is in the hand writing of Dhani Ram (Ex. Ka 3). The sessions Judge granted bail to Dhani Ram on 4.5.1979. Thereafter, on 5.5.1979 his statement was recorded under Section 306 (iv) (a) Cr.P.C. Elaborating his submission the learned counsel for the appellants submitted that the accomplice Dhani Ram could not have been enlarged on bail on 4.5.1979 and was required to be detained in custody till the conclusion of the trial as per Section 306(iv)(b) Cr.P.C. As the accomplice Dhani Ram has been enlarged on bail prior to the conclusion of the trial, the same is violative of the mandatory provisions of Section 306 (iv)(b) Cr.P.C. Thus the trial stands vitiated and the appellants are liable to be discharged of the charges alleged against them. 46. 46. The aforesaid submission is founded on Section 306 Cr.P.C, as such, it is imperative to reproduce the same for ready reference:- "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 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 dis- closure 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. (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 sub- section (4), the Magistrate 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." 47. A plain reading of Section 306 (iv) Cr.P.C, clearly reveals that it is in two parts. The first part is regarding the mandate of the Section i.e. every person accepting a tender of pardon under sub-section 1 shall be examined as a witness. The second part is procedural which provides that unless he is already on bail he shall be detained in custody until the conclusion of the trial. It is the second part which falls for consideration in this appeal. 48. According to the learned counsel for the appellants, once a person has been granted a tender of pardon, not only his statement is to be recorded, but he is also required to be detained in custody till the conclusion of the trial. The submission so made is unacceptable. The language of sub section (b) of Section 306 (iv) is very clear. It provides the detention of the person accepting the pardon till the conclusion of trial unless he has not been enlarged on bail. The words "unless he has been enlarged on bail" have to be given a wide meaning. The submission so made is unacceptable. The language of sub section (b) of Section 306 (iv) is very clear. It provides the detention of the person accepting the pardon till the conclusion of trial unless he has not been enlarged on bail. The words "unless he has been enlarged on bail" have to be given a wide meaning. In the present case the accomplice Dhani Ram whose statement was recorded on 5.5.1979 under Section 306 (iv)(a) Cr.P.C. was already enlarged on bail by the sessions court vide order dated 4.5.1979, which is prior to the date on which the statement of the accomplice as approver was recorded in terms of section 306 (iv)(a) Cr.P.C. i.e. on 5.5.1979. As such the present case is covered by the second part i.e. Section 306 (iv)(b) Cr.P.C. It is important to mention here that the order dated 4.5.1979 passed by the sessions court enlarging Dhani Ram on bail was never challenged by the appellants herein. Thus the words "occuring" in Section 306 (iv)(b) "if not already released on bail" are fully attracted in the present case. No illegality was committed by the sessions Court in granting bail to the accomplice Dhani Ram nor does it have any legal impact so as to vitiate the trial or cause any prejudice to the accused. 49. The legal issue raised by the counsel for the appellants in the light of the facts stated above that if an accomplice has been enlarged on bail contrary to the mandate of section 306 (iv)(b) Cr.P.C, the same shall vitiate the trial is no longer res-integra. Reference in this regard be made to the following observations contained in paragraph 34 of the judgment of the Apex Court as reported in AIR 1994 SC 2420 Suresh Chandra Bahri Vs. State of Bihar:- 34. As regards the contention that the trial was vitiated by reason of the approver Ram Sagar being released on bail contrary to the provisions contained in clause (b) of sub- section (4) of Section 306 of the Code. It may be pointed out that Ram Sagar after he was granted pardon by the learned Magistrate by his order dated 9-1-1985, was not granted bail either by the committing Magistrate or by the learned Additional Judicial Commissioner to whose court the case was committed for trial. It may be pointed out that Ram Sagar after he was granted pardon by the learned Magistrate by his order dated 9-1-1985, was not granted bail either by the committing Magistrate or by the learned Additional Judicial Commissioner to whose court the case was committed for trial. The approver Ram Sagar was, however, granted bail by an order passed by the High Court of Patna, Ranchi Bench in Criminal Miscellaneous Case No. 4735 of 1986 in pursuance of which he was released on bail on 21-1-1987 while he was already examined as a witness by the committing Magistrate on 30-1-1986 and 31-1-1986 and his statement in sessions trial was also recorded from 6-9-1986 to 19-11-1986. It is no doubt true that clause (b) of Section 306 (4) directs that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. The dominant object of requiring an approver to be detained in custody until the termination of the trial 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 the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these reasons that clause(b) of Section 306 (4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not have any affect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar. 50. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar. 50. The same issue has further been dealt by the Apex Court in the case of Narayan Chetanram Chaudhary and another Vs. State of Maharshtra reported in AIR 2000 SC 3352 , Paragraph 27 of the judgment which is relevant in the context of the present case is reproduced herein below:- "27. There is no legal obligation on the Trial Court or a right in favour of the accused to insist for the compliance with the requirement of Section 306 (4) of the Cr.P.C. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to the compliance of conditions specified in Sub-Section (1) of Section 306. The law mandates the satisfaction of the court granting pardon, that the accused would make a full and true disclosure 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. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the Trial Court. The Trial Court, in this case has taken all precautions in complying with the provisions of Section 306(1) before tendering pardon to accused Raju, who later appeared as PW2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of PW2." From the discussions made above and the law on the subject as crystallized by the Apex Court, the inescapable conclusion is that the grant of bail to the approver Dhani Ram cannot be said to be illegal nor the same has vitiated the trial in any manner. (D) The statement of the approver Dhani Ram recorded under Section 306 (iv) (a) Cr. P.C. is not voluntary and therefore cannot be relied upon. 51. Mr. Rajiv Lochan Shukla, learned counsel for the appellants very strenuously pleaded that the statement of the approver Dhani Ram recorded under Section 306 (iv)(a) Cr.P.C. is not voluntary and therefore the same cannot be relied upon. P.C. is not voluntary and therefore cannot be relied upon. 51. Mr. Rajiv Lochan Shukla, learned counsel for the appellants very strenuously pleaded that the statement of the approver Dhani Ram recorded under Section 306 (iv)(a) Cr.P.C. is not voluntary and therefore the same cannot be relied upon. To buttress the aforesaid submission, learned counsel for the appellants referred to various portions of the statement of the accomplice Dhani Ram recorded before the S.D.M. Banda, purported to be under section 164 Cr.P.C, the statement of the approver Dhani Ram recorded under Section 306 (iv)(a) Cr.P.C, as well as, his statement recorded before the Court below as P.W. 1. 52. Elaborating his argument, learned counsel for the appellants referring to the fact that after the making of the statement before the SDM Banda purported to be under Section 164 Cr.P.C, the accomplice Dhani Ram was not detained in custody and furthermore, after his being declared as an approver he was not kept in confinement and was granted bail contrary to the provisions of Section 306 (iv)(b) Cr.P.C. On the aforesaid factual premise, it was submitted by the counsel for the appellants that the approver Dhani Ram was approached by P.W.6 namely Sri Chakrpani Srivastava while he was detained in custody and was also given money by P.W. 6. It was further urged that the accomplice Dhani Ram had made a request to P.W. 6 to get him bailed out as he was sick and P.W. 6 had told him that he would see what he could do. In support of the aforesaid submissions and the factual foundation laid regarding the same, as stated above, support was drawn by making reference to paragraph 20 of the statement of P.W. 1 Dhani Ram. In support of the aforesaid submissions and the factual foundation laid regarding the same, as stated above, support was drawn by making reference to paragraph 20 of the statement of P.W. 1 Dhani Ram. Paragraph 20 of the statement of Dhani Ram is reproduced herein below:- ** 20- eq>s ugh ekywe fd esjh tekur fdl odhd lkgsc us djk;k FkkA eq>s ;g ckr vkt rd ugh ekywe gSA mudks eSus ns[kk Hkh ughaA eq>s ugh ekywe fd tekur es fdruk o fdlds }kjk [kpZ gqvkA esjs cguksbZ Jh izse pUn th lo djrs jgsA eq>s] ;fn fizaLiy lkgsc us tekur djk;k gks rks ugh ekywe gS D;ksafd eS rks tsy es FkkA tc feykbZ djus x, Fks rc ugh crk;k Fkk fd og esjh tekur djok;saxsA eSus muls ;g dgk Fkk fd esjh rfc;r [kjkc gS esjh tekur djok nhft,A mUgksus dgk Fkk fd ns[kk tk;sxkA okgj vkus ij ;g irk fd esjh tekur fdlus djk;k ugh yxk;k] u rks fdlh us eq> ls crk;k ghA ;g xyr gS fd esjh tekur fizaLiy lkgsc us djk;k Fkk bls eSa tkurk gWw vkSj bl ckr dks fd esjh tekur fizaLiy lkgsc us djk;k Fkk tkucw>dj fNik jgk gWwA ** 53. On the basis of the aforesaid factual premise, it was emphatically submitted that the application for being declared an approver was not the voluntary act of the approver but the same had been done at the instance of Prem Chand the brother-in-law of the approver as well as P.W. 6 Chakrapani Srivastava. Even the first application before the District Magistrate, Banda on which his supposed statement under Section 164 Cr.P.C, was recorded, was not voluntarily given by the approver, but at the instance of his brother-in-law Prem Chand. It was also urged that the application was also not voluntarily written by the approver. To give strength to the aforesaid submissions, the attention of the Court was drawn to the various contradictions qua the writing of the application which are said to be highlighted in para-24 of the statement of P.W. 1 Dhani Ram. It was also urged that the application was also not voluntarily written by the approver. To give strength to the aforesaid submissions, the attention of the Court was drawn to the various contradictions qua the writing of the application which are said to be highlighted in para-24 of the statement of P.W. 1 Dhani Ram. Paragraph 24 of the statement of P.W.1 Dhani Ram reads as follows:- **24- [kkudkg gkbZ Ldwy es esjs cguksbZ pijklh gSaA Jh pdzikf.k th bl Ldwy ds fizaLiy ls feyus tk;k djrs FksA 31-3-79 dks esjk C;ku fMIVh lkgsc ds ;gkW gqvk FkkA ml le; esjs cguksbZ Jh izsepUnz th dejk btykl es ugh Fks] ckgj [kMs FksA C;ku nsus ds IkwoZ eSus ml nj[okLr dks i<+ fy;k FkkA dsoy ,d ckj gh i<k FkkA dbZ ckj ugh i<+k FkkA ogkW ij fMIVh lkgsc Fks] eS ;k o is'kdkj lkgsc FksA ogkW dksbZ odhy lkgc ;k nhxj ckgjh vkneh ugh FkkA ftl fnu lh-th-,e- lkgsc ds C;ku gqvk gS ml fnu C;ku ds le; ljdkjh odhy dksVZ lkgsc FksA muds lkFk dksbZ odhy lkgc nwljs odhy lkgc ugh FksA ljdkjh odhy lkgsc us dgk Fkk fd ;gh ;gh C;ku tks nj[okLr es fy[kk gS ns nks cp tkvksxsA tks nj[okLr eSus tsy ls] Hkstok;k Fkk mls i< dj dksVZ lkgsc us lquk fn;k FkkA tsy okyh nj[okLr tsy d vUnj uUnyky flikgh ls tsyj ds lkeus fy[kkbZ XkbZ FkhA fizaLiy lkgsc us ugh ogh tsy es cUn gokykfr;ksa us crk;k Fkk fd ,slh nj[okLr ns nksA eq>s esjs cguksbZ Hkh ;gh dgk FkkA fizaLiy lkgsc us Hkh feykbZ ds le; ,slh nj[okLr Hkstokus ds fy, dgk FkkA eq>s ;g ugha ekywe fd mlds ikl fy[kk dkxt Fkk mldh mUgksus udy dj fn;k FkkA mUgksus rks izkjEHk ls vUr rd esjs lkeus gh fy[kk FkkA eSus lc muls crk fn;k rks mUgksus fy[k fn;kA esjs cguksbZ us ;g crk;k Fkk fd og nj[okLr lh-th-,e-dh btykl esa Hksth tk;xhA esjs thtk th us crk;k Fkk fd ljdkjh xokg cutkus ls rqe ltk ls cp tkvksxsA izn'kZ d&2 ogh nj[okLr gSaA esjk gLrk{kj 30-4-79 dk gSaA rkjh[k ogkW dh eSus fy[kk gSA nj[okLr ds uhps rkjh[k vyx ls Hkh gSA ogkW igys 28-4-79 FkkA bl 28 dks dkV dj 30 fd;k x;k gSA 28 dk 2 o 8 nksuks lkQ lkQ tkfgj gks jgs gSA ;g nj[okLr esjs lkeus ugh fy[kh xbZ FkhA eq> ls dsoy bu ij nLr[kr djk fy;k FkkA bl nj[okLr dks uanyky us fy[kk gS ;k vkSj fdlh us] ugh crk ldrkA fQj dgk fd ;g ogh nj[okLr gSaA esjs lkeus fy[kh xbZ FkhA 28 dk 30 fdlus fd;k] dc fd;k] dgkW fd;k]\ ugh crk ldrkA fQj dgk fd ;g nj[okLr esjh fy[kkbZ ugh gSa og nj[okLr tsyj lkgsc ds ikl igWqph FkhA mUgksus cqyok dj esjk nks txg nLr[kr djok;k FkkA eSus ;g C;ku fd bl nj[okLr izn'kZ d2 dks uUnyky us fy[kk Fkk xyrQgeh ls xyr dg fn;k FkkA ** 54. Extending his arguments, the appellants' counsel urged that the Manager of the inter college, P.W. 2 Manni Singh, is one of the sureties of the approver when he was granted bail and the above gamut of facts lead to the irresistible conclusion that the statement was not voluntary and was induced by promises and acts of the prosecution witness, specifically P.W. 6 Chakrapani Srivastava and P.W. 2 Manni Singh, as also Prem Chand, the brother-in-law of the approver who, as per the evidence on record, had terms with P.W.6 even prior to the incident. Another factual aspect of the matter to which attention was drawn by the counsel for the appellants is that the statement under Section 164 Cr.P.C, was recorded on oath before the Sub- Divisional Magistrate, Banda and the presence of P.W. 6 in jail may also lead to a conclusion that the earlier statement, which was not voluntary, had been used as a threat/coercion to get P.W. 1 to seek pardon and turn an approver. Elaborating his submission further, the counsel for the appellants argued that even the prosecuting officer had promised the approver that if he deposes to what was written in the application then he would be saved. Therefore, according to the appellants' counsel, the entire exercise of P.W. 1 being granted pardon and turning an approver is therefore a sham and undue influence/threat/coercion/promise appears to have been used for inducing such statements. 55. The sum total of the aforesaid submissions of the counsel for the appellants can be summarized as follows. Firstly, the supposed confessional statement of the accused Dhani Ram recorded before the SDM Banda on 31.3.1979 was not voluntary but was the outcome of influence and presure exerted upon Dhani Ram by his brother-in-law namely, Prem Chand. Secondly, the statement of the accomplice Dhani Ram given before the SDM , Banda on 31.3.1979 was used as a tool of threat and coercion forcing Dhani Ram to turn approver and give his statement under Section 306 (iv)(a) Cr.P.C. i.e. the statement of the approver. Lastly, the cumulative effect of the instances detailed in the preceding paragraph clearly go to show that the statement of Dhani Ram as an approver was not the outcome of the voluntary act of Dhani Ram. As such by reason of Section 24 of the Indian Evidence Act, the same cannot be relied upon. 56. Lastly, the cumulative effect of the instances detailed in the preceding paragraph clearly go to show that the statement of Dhani Ram as an approver was not the outcome of the voluntary act of Dhani Ram. As such by reason of Section 24 of the Indian Evidence Act, the same cannot be relied upon. 56. To appreciate the challenge made to the nature of the statement of the accomplice/approver Dhani Ram and to decide whether the statement of Dhani Ram as an approver is voluntary or not, it will be useful to refer to the alleged confessional statement of the accomplice Dhani Ram recorded on 31.3.1979 before the SDM, Banda and also the statement of the approver Dhani Ram recorded before the Magistrate on 5.5.1979. 57. A perusal of the statement of Dhani Ram rendered before the S.D.M., Banda on 31.3.1979 purported to be under Section 164 Cr.P.C, Ex. Ka-1 will go to show that the aforesaid statement has been made by the accomplice Dhani Ram giving the true and complete description of incident which occurred in the night of 2/3.3.1979. However, the last three lines of the aforesaid statement on which much stress was laid by the appellants' counsel make a reference that the same has been made at the instance of the Principal i.e. the complainant P.W. 6 Chakrapani Sriwastava. The relevant portion of the statement of the accomplice Dhani Ram recorded before the SDM, Banda on which reliance was placed is extracted herein below:- **lkgc ds ;g dgus ij lgh 2 crk nks rqEgsa dqN ugha gksxk] eSus lgh 2 crk fn;kA lqukus ij lk{kh us crk;k fd IkSaV dksV vkSj twrs e`rd ds] vkaxu ls ugh cfYd DokVZj ls mBk, FksA** 58. Similarly the statement of the approver Dhani Ram given before the Magistrate on 5.5.1979 (Ex. Ka-4) will similarly go to show that the aforesaid statement not only gives a true and complete description of the event which occurred in the night of 2/3.3.1979 but the same is the outcome of his own free will, to disclose the truth about the aforesaid incident. Ka-4) will similarly go to show that the aforesaid statement not only gives a true and complete description of the event which occurred in the night of 2/3.3.1979 but the same is the outcome of his own free will, to disclose the truth about the aforesaid incident. This is explicit from the following portion of the statement of P.W. 1 Dhani Ram, which is reproduced herein below:- **jkevkSrkj o jkenhu us ogkW ij c`ts'k dks mBkdj iVd fn;k vkSj jkevkSrkj us lCoy ls c`ts'k ds lj ij okj dj fn;k c`ts'k fpyk;k rks jkenhu us mlds eqag esa diM+s Hkj fn;s vkSj mldk xyk nckus yxsA nksuksa vkneh xyk nokus yxs vkSj diM+k Bwlus yxs eSaus cpk;k rks jkevkSrkj us eq>s reapk fn[kkdj /kedk;kA c`ts'k ds ejus ds ckn vkaxu esa ulsuh yxkbZ vkSj ge lcus feydj mldh yk'k dks ihNs Qsad fn;kA esjs eu ls lp ckr dgus dh bPNk gqbZ rks eSus,l0Mh0,e0 ds vnkyr esa tkdj viuk c;ku fn;kA 8-4-79 dks tc eS pUnokj bu yksxks dh [kkst [kcj ysus x;k rks eq>s iqfyl us idM+ fy;kA eSus tsy ls 30-4-79 dks ljdkjh xokg cuus dh nj[okLr HkstokbZ FkhA eSus vkt tks c;ku fn;k gS og viuh ethZ ls fcuk fdlh tksj o ncko ds fn;k gSA ** 59. On a conjoint reading of the aforesaid statements of the accomplice/approver Dhani Ram as a whole and as referred to above, no such inference as asserted by the counsel for the appellant can be drawn. To the contrary the accomplice/approver is consistent regarding the manner in which the criminality was conducted upon the body of the deceased. The recital contained in the statement of the approver as quoted above, clearly reflects his state of mind to expose the truth. The accomplice/approver by giving his statement wanted to get relieved of the cloak of criminality committed by him in joining the accused appellants No. 1 and 2, which had also become unbearable for him. The act of motivation on the part of some persons motivating the accomplice to give his confessional statement or to give approver statement can by no stretch of imagination need to the conclusion that the statements are not voluntary. 60. The act of motivation on the part of some persons motivating the accomplice to give his confessional statement or to give approver statement can by no stretch of imagination need to the conclusion that the statements are not voluntary. 60. This bring us to the last part of the controversy as to whether the instances relied upon by the appellants' counsel to show that the statement of Dhani Ram as an accomplice as well as an approver were not voluntary and therefore the same could not be relied upon. Detailing his argument, learned counsel for the appellants with much eloquence canvassed before us that the statement of the approver being the outcome of threat, promise and inducement is not voluntary. Reference in this regard was made to the provisions of Section 24, 28, 29 and 30 of the Indian Evidence Act as well as Section 164 Cr.P.C. To appreciate the same, it will be useful to refer to the provisions of Sections 24, 28, 29 and 30 of the Indian Evidence Act which deal with the statement of an approver. The same are referred to herein below:- "24. Confession caused by inducement, threat or promise when irrelevant in criminal proceedings- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat for promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 28. Confession made after removal of impression caused by inducement, threat or promise, relevant- If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. 29. 28. Confession made after removal of impression caused by inducement, threat or promise, relevant- If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. 29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc- If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining, it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person makes such confession. [ Explanation--"Offence" as used in this section, includes the abetment of, or attempt to commit, the offence.]" 61. For discarding the evidence of Dhani Ram as an accomplice/approver, on the ground of the same being involuntary, it is imperative to find out whether the statement of Dhani Ram before the S.D.M., as an accomplice and further his statement before the Magistrate as an approver was voluntary or the outcome of any inducement, threat or promise. To put it the other way, it is, whether the instances relied upon by the counsel for the appellants could be the basis for disbelieving the approver's evidence as it is an outcome of inducement, threat or promise and therefore involuntary. 62. To find a correct answer to the aforesaid, it is first necessary to have the meaning of the words 'Voluntary', 'Inducement', 'Threat' and 'Promise' as understood in criminal jurisprudence. (i) The word "Voluntary" has been defined in "Black's Law Dictionary" to mean: 1. Done by design or intention, 2. 62. To find a correct answer to the aforesaid, it is first necessary to have the meaning of the words 'Voluntary', 'Inducement', 'Threat' and 'Promise' as understood in criminal jurisprudence. (i) The word "Voluntary" has been defined in "Black's Law Dictionary" to mean: 1. Done by design or intention, 2. Unconstrained by interference, not impelled by outside influence, 3. Without valuable consideration or legal obligation, 4. Having merely nominal consideration. (ii) In "Words and Phrases Legally Defined 4th Edition the word Voluntary has been defined as: See also annual voluntary Contributions; conscious, voluntary And Deliberate Act; Free ' "Voluntarily" means, obviously, the doing of something as the result of the free exercise of the will.' Re Wilkinson, Page v Public Trustee [1926] Ch 842, 850, per Tomlin J 'In the present State of the law an admission of guilt or an admission of facts rending to establish guilt is only receivable in evidence against the party making it if it is shown to be "voluntary". It is clear that the word "voluntary" in this connection is not to be given its widest meaning, but unfortunately the reported cases and the leading text books are not unanimous as to the sense in which the word is to be used. The classic statement of the principle is that of Lord Summer in Ibrahim v. Regam [[1914] AC 599] where he said, "It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale" However, in five of the eleven text books cited to us... support is to be found for a narrow and rather technical meaning of the word "voluntary". The principle is as old as Lord Hale" However, in five of the eleven text books cited to us... support is to be found for a narrow and rather technical meaning of the word "voluntary". According to this view "voluntary" means merely that the statement has not been made in consequence of (I) some promise of advantage or some threat (ii) of a temporal character (iii) held out or made by a person in authority, and (iv) relating to the charge in the sense that it contemplated proceedings will or may be better or worse according to whether or not the statement is made.' Rv Harz, R v Power [1966] 3 All ER 433 at 454-455, per Cantley V. * (iii). The word "Voluntary" has also been the subject matter of consideration in a number of cases. However, reference be made to the case of Devendra Pal Singh Vs. State of N.C.T. of Delhi 2002 (5) SCC 234 , wherein paragraph 31, it has been observed: "Voluntary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak nothing but the truth.As per Stroud's Judicial Dictionary, 5th Edn., at p. 2633, threat means. "It is the essence of a threat that it be made for the purpose of intimidating, or overcoming, the will of the person to whom it is addressed (per Lush, J., Wood v. Bowron (1866) 2 QB 21) cited Intimidate)." Words and Phrases, Permanent Edition Vol. 44,p. 622, defines "voluntary" as: " 'Voluntary' means a statement made of the freewill and accord of accused, without coercion, whether from fear of any threat of harm, promise, or inducement or any hope of reward -. State v. Mullin (85 NW 2d598, 600, 249 loan 10)." At p. 629, "confession" is defined as: "where used in connection with statements by accused, words 'voluntary' and 'involuntary' import statements made without constraint or compulsion by others and the contrary. Commonwealth v. Chin Kee(186 NE 253, 260, 283 Mass 248)." In Words and Phrases by John B. Saunders, 3rdEdn., Vol. 4 p. 401, "voluntary" is defined as: "The classic statement of the principle is that Lord Summer in Ibrahim v. Regem (1914 AC 599) (atp. Commonwealth v. Chin Kee(186 NE 253, 260, 283 Mass 248)." In Words and Phrases by John B. Saunders, 3rdEdn., Vol. 4 p. 401, "voluntary" is defined as: "The classic statement of the principle is that Lord Summer in Ibrahim v. Regem (1914 AC 599) (atp. 609) where he said, "It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held bout by a person in authority. The principle is as old as Lord Hale".However, in five of the eleven textbooks cited to us...support is to be found for a narrow and rather technical meaning of the word "voluntary". According to this view "voluntary" means merely that the statement has not been made in consequence of (i) some promise of advantage of some threat (ii) of a temporal character(iii) held out or made by a person in authority, and (iv)relating to the charge in the sense that it implies that the accused's position in the contemplated proceedings will or may be better or words according to whether or not the statement is made." R. v. Harz, R.v. Power (1966)3 All ER 433 (at pp. 454, 455) per Cantley, V.' So the crux of making a statement voluntarily is, what is intentional, intended, enameled by other influences,acting on one's own will, through his own conscience. Such confessional statements are made mostly out of athirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart." (iv). The word "Inducement" has been defined in Black's Law Dictionary to mean :- "An Act or process of enticing or persuading another person to take a certain course of action" (v). It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart." (iv). The word "Inducement" has been defined in Black's Law Dictionary to mean :- "An Act or process of enticing or persuading another person to take a certain course of action" (v). In "Stroud's Judicial Dictionary", the word "Inducement" has been defined as follows: "An "Inducement" may amount to a bargain: "If a man is induced to do a thing upon the faith of a sum being paid to him, that amounts to a bargain between the parties, whether the word describing the transaction be 'inducement or 'bargain' ''(Per Hatherley C., Bayspoole v. Collings, 40 L.J. Ch. 292)" (vi). In "Words and Phrases Legally Defined 4th Edition" the word "Inducement" has been defined to mean:- "Inducement" is a word defined in the New Shorter Oxford Dictionary as (among other definitions) "lead, persuade, influence (a person)". Another definition is to be found in Butterworths Australian Legal Dictionary under the sub-heading "Criminal Law". The following appears: "A persuasion of temporal or worldly as opposed to moral or religious character aimed at producing some willing action on the part of an accused by a person with authority." The word "inducement" is coupled with the words "promise or threat". The composite phrase is "a promise or threat or any other inducement". Promises and threats are apt to incline suspects to accept guilt when they are not guilty. That is the rationale for being careful about admitting confessions which have resulted from promises and threats. The same rationale must apply to 'other inducement'. In broad terms therefore an inducement may by anything which might logically incline a suspect a suspect falsely to admit guilt. (vi). Similarly, in "Black's Law Dictionary", the word "threat" has been defined to mean:- "A communicated intent to inflict harm or loss on another or on another's property, esp. one that might diminish a person's freedom to act voluntarily or with lawful consent." (viii). In "Stroud's Judicial Dictionary" the word "threat" has been described as an action meaning that:- "it is the essence of a threat that it be made for the purpose of intimidating, or overcoming, the will of the person to whom it is addressed" (ix). one that might diminish a person's freedom to act voluntarily or with lawful consent." (viii). In "Stroud's Judicial Dictionary" the word "threat" has been described as an action meaning that:- "it is the essence of a threat that it be made for the purpose of intimidating, or overcoming, the will of the person to whom it is addressed" (ix). In "Words and Phrases Legally Defined 4th Edition", the word "threat" has been defined to mean as follows:- "See also Intimidation Australia [Section 30 of the Crimes Act 1900 (ACT) provides that it is an offence to, inter alia, make a 'threat' to another person to kill that other person or any third person.] ' There is no real question as to what is meant by the word "threat". It is a declaration: see Concise Oxford Dictionary, 1984, Oxford, Clarendon. The intention so declared has to be that of ending the life of the person or persons allegedly so threatened.' R v Leece (1995) 125 ACTR 1 at 4-5, per Higgins J Of industrial action 'After the decisions that have been given upon this statute [a repealed Act which dealt with illegal combinations of workmen] it is too late to say that the word "threat" is limited to the declaration of an intention to do those acts with which it stands in intimate connection, viz acts of violence to the property or person of another. The cases that have been decided show that the word must have a wider sense; namely, a threat by at or words of doing some injury to another person. But I apprehend that it is the very essence of a threat that it should be made for the purpose of intimidating or overcoming the will of the person to whom it is addressed.' Wood & Barrow v. Bowron (1866) LR 2 QB 21 at 30, per Lush J 'It is undeniable that the terms "threat", "coercion", and even "intimidation", are often applied in popular language to utterances which are quite lawful and which give rise to no liability either civil or criminal. They mean no more than this, that the so-called threat puts pressure, and perhaps extreme pressure, on the person to whom it is addressed to take a particular course. Of this again numberless instances might be given. They mean no more than this, that the so-called threat puts pressure, and perhaps extreme pressure, on the person to whom it is addressed to take a particular course. Of this again numberless instances might be given. Even then if it can be said without abuse of language that the employers were "intimidated and coerced" by the appellants, even if this be in a certain sense true, it by no means follows that he committed a wrong or is under any legal liability for his act. Everything depends on the nature of the representation or statement by which the pressure was exercised. The law cannot regard the act differently because you choose to call it a threat or coercion instead of an intimation or warning.' Allen v Flood [1898] AC 1 at 129, per Lord Herschell. 'A threat is only an intimation by one to another that unless the latter does or does not do something the former will do something which the latter will not like. But it is impossible to say whether such a threat is or is not lawful until if has been ascertained what it is that is threatened to be done. If the threat is to use violence to person or property, it is obviously an intimation that the threatener intends to use unlawful means for the purpose of attaining his end: and no one would doubt that a threat to do that which is unlawful cannot be defended. Where the threat is part and parcel of a conspiracy or unlawful combination, it may be affected by the illegality of the conspiracy or combination. I do not understand the legal basis for contending that is is unlawful for a man to threaten to do merely that which he is entitled to do. The act itself is immune from attack, yet an intimation that it will be done is to be ground of liability. It may be that the idea is due to the belief that the threat is a menace or intimidation, and that it is unlawful, because it puts unlawful pressure upon the person who is subjected to it. If a threat amounts to intimidation or a menace of violence it cannot be defended; but assuming that it does not, the question remains whether it does in fact exercise pressure of an unlawful kind. If a threat amounts to intimidation or a menace of violence it cannot be defended; but assuming that it does not, the question remains whether it does in fact exercise pressure of an unlawful kind. Omitting cases of conspiracy of combination, I venture to doubt whether the pressure of a mere statement that the speaker intends to do something which he is legally entitled to do if the man to whom he is speaking does not adopt a particular course, can be unlawful pressure.' Hodges v Webb [1920] 2 Ch 70 at 89, per Paterson J." (x). Similarly, in "Black's Law Dictionary", the word "promise" has been defined to mean: "The manifestation of an intention to act or refrain from acting in a specified manner, conveyed in such a way that another is justified in understanding that a commitment has been made; a person's assurance that the persons will or will not be something." (xi). In "Stroud's Judicial Dictionary" the word "promise" has been described as an action meaning that: (1)" 'promise' is when, upon a valuable consideration, we bind ourselves by our words to do or perform such an act as is agreed upon and concluded, upon which an action may be grounded; whereas, if be without consideration it is called nadum pactum, ex quo non oritur actio" (Cowel). Cp. Nude Contract.' " (2) Although "promise" usually refers to a future time it may also mean "to assert confidentially, to declare": see Sweeney v. Kennedy, 82 L1. L.R. 294. (xii). In "Words and Phrases Legally Defined 4th Edition", the word "Promise" has been defined to mean as follows:- "A promise is in the nature of a verbal convenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract, as much as any convenant; and the breach of it is an equal injury. (3 B1 Com 157). " 63. Mr. Rajiv Sharma, the learned A.G.A, while controverting the aforesaid submissions has relied upon the jugement of the Supreme Court as reported in 1997 (3) SCC 721 , K. I. Pavunny Vs. Assistant Collector (Head Quarter), Central Excise Collectorate, Cochin, in support of his submissions, based upon paragraphs 5, 6 and 20 of the aforesaid judgment. " 63. Mr. Rajiv Sharma, the learned A.G.A, while controverting the aforesaid submissions has relied upon the jugement of the Supreme Court as reported in 1997 (3) SCC 721 , K. I. Pavunny Vs. Assistant Collector (Head Quarter), Central Excise Collectorate, Cochin, in support of his submissions, based upon paragraphs 5, 6 and 20 of the aforesaid judgment. The same are quoted herein below:- "5.The primary question, as referred to us for consideration, is: whether the retracted confessional statement, Ex. P-4, by the appellant is inadmissible in evidence under Section 24 of the Evidence Act and what is the scope for its consideration? Since we did not receive any assistance on the question of law, we have independently investigated the case law ourselves and to the extent we could lay our hands, we are dealing with the relevant case law in that behalf. Section 24 of the Evidence Act deals with admissibility of the confession. it reads as under: "24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 6. A bare reading of the above provision would indicate that for application of Section 24 of the Evidence Art, the following ingredients are required to be established: (a) the statement in question is a confession: (b) such confession has been made by an accused; (c) it has been made to a person in authority; (d) it was obtained by reason of any inducement, threat or promise proceeding from a person in authority; (e) such inducement, threat or promise must have reference to the charge against the accused person; and (f) the inducement, threat or promise must be, in the opinion of the Court is sufficient to give an accused person grounds which would appear to him to be reasonable by supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 20. The question then is: whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that in a trial and proprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh V/s. State of Punjab [ AIR 1952 SC 214 , para 30]. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one implicating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of given set of facts. The high degree of proof and probative value is insisted in capital offences." Relying upon paragraph 6 of the aforesaid judgment Mr. Rajiv Sharma, learned A.G.A. has seriously disputed the submissions of the counsel for the appellants. These require to be tested in the light of given set of facts. The high degree of proof and probative value is insisted in capital offences." Relying upon paragraph 6 of the aforesaid judgment Mr. Rajiv Sharma, learned A.G.A. has seriously disputed the submissions of the counsel for the appellants. According to the learned A.G.A, simply on the basis of the instances culled out of the statement of Dhani Ram as an accomplice, approver and as P.W. 1, it cannot be said that the statement of Dhani Ram is the outcome of the use inducement, threat and promise. According to the learned A.G.A, for discarding the approver statement of Dhani Ram, it is necessary to establish that the instances relied upon by the counsel for the appellants for discarding the statement of the approver are sufficient enough to establish that they are the outcome of the same. To establish the same what is primarily required is that the ingredients necessary for invoking the exclusion on account of the use of threat promise or inducment, the same are to be logically proved. However, the same are conspicuous by there absence in the present case. For invoking the applicability of Section 24 of the Indian Evidence Act, it is necessary to establish the ingredients of threat, promise and inducement, in the light of the facts which are totally lacking in the present case. Learned A.G.A. further submits that a half hearted attempt has been made by the appellants counsel regarding the exclusion of the statement of the accomplice/approver. 64. The law relating to the necessity of having the approver's statement has already been referred to in paragraph 23 of the Judgment. Consequently, the purpose behind the approver's statement need not be repeated. With this legal backdrop the submissions made by the counsel for the appellants, regarding the inadmissibility of the statement of the approver Dhani Ram have to be examined. The statement given by the accomplice Dhani Ram before the S.D.M. has already been discussed in the preceding part of the judgment and it has been held not be a statement under Section 164 Cr.P.C. in the strict legal terms. At the most the said statement of the accomplice Dhani Ram can be said to be an admission. The statement given by the accomplice Dhani Ram before the S.D.M. has already been discussed in the preceding part of the judgment and it has been held not be a statement under Section 164 Cr.P.C. in the strict legal terms. At the most the said statement of the accomplice Dhani Ram can be said to be an admission. The law relating to admission has now been crystallized and it has been held that an admission is not conclusive and the parties can show that it is not true. Therefore, a contradiction drawn from the statement of the accomplice given before the S.D.M. cannot be a ground for ignoring his statement as an approver. The statement given by Dhani Ram as an approver amounts to an admission made by him, it does not fall within the realm of contradiction. The words 'omission and contradiction' are two different words having different meanings. The statement of Dhani Ram as an approver improves upon the statement as a accomplice but it does not in any manner dilute or break the consistency of the manner in which the incident occurred. The categorical recital contained in the statement of the approver Dhani Ram (Ex. Ka. 4) clearly go to show that the aforesaid statement was given by Dhani Ram out of his own free will, as such the same is voluntary. The submission of the counsel for the appellants that the statement of Dhani Ram as an approver is the outcome of Inducement, threat or promise, was strongly opposed by the A.G.A. Mr. Rajiv Sharma to which reference has already been made in the preceding paragraph. The reliance placed upon certain part of the statement of Dhani Ram as an accomplice/approver and as P.W. 1 for the contention that the said statement is the outcome of promise, threat or inducement, cannot be accepted as the instances referred to and relied upon do not satisfy the ingredients necessary to establish that there is existence of Inducement threat or promise in having the statement of the accomplice/approver Dhani Ram. There is no factual foundation laid by the learned counsel for the appellants to bring home the theory that the statement of the accomplice was obtained by resorting to the use of promise threat or inducement. There is no factual foundation laid by the learned counsel for the appellants to bring home the theory that the statement of the accomplice was obtained by resorting to the use of promise threat or inducement. As such there is no occasion for this Court to discard the testimony of Dhani Ram as an accomplice as well as an approver. Consequently, in the aforesaid factual premise, the inescapable conclusion is that the statement of Dhani Ram as an accomplice/approver was not the outcome of any inducement, threat or promise, but the same was voluntary in character and therefore reliable evidence. (e) There are various contradictions in the statement of the accomplice given under sections 164, 306 (iv) (a) Cr. P.C. and as a prosecution witness as such unworthy of credit. 65. In continuation of the challenge to the conviction awarded to the appellants Mr. Rajiv Lochan Shukla, learned counsel for the appellants contended that a perusal of the statement of the accomplice Dhani Ram given before the S.D.M, Banda under Section 164 Cr.P.C, the statement as an approver under Section 306(iv)(a) Cr.P.C. and that given in Court as P.W. 1 would show various contradictions. The most important of such contradiction is the absence of the murder weapon 'Sabbal' in the statement under Section 164 Cr.P.C. The same is a later improvement made in the statement under Section 306(iv)(a) Cr.P.C. which has been recorded after the recovery of murder weapon 'Sabbal'. The narration of facts, which have been stated in the three statements, i.e., statements under Section 164 Cr.P.C, the statement under Section 306(iv)(a) Cr.P.C. and that recorded in the Court as P.W. 1, would show that the same is not inculpatory. The approver has taken care of extricating himself from criminal liability by stating that he was made to participate in the act of criminality committed by the accused persons on gunpoint whereas, he had actually tried to save the deceased but was prevented from doing so. No such country made pistol supposedly used in threatening the approver Dhani Ram has been recovered. 66. To lend support to the aforesaid submission, learned counsel for the appellants placed reliance upon Section 94 I.P.C. and submitted that the approver had concocted the case in the manner to avoid criminal liability. No such country made pistol supposedly used in threatening the approver Dhani Ram has been recovered. 66. To lend support to the aforesaid submission, learned counsel for the appellants placed reliance upon Section 94 I.P.C. and submitted that the approver had concocted the case in the manner to avoid criminal liability. Similarly, reliance was placed upon Section 114 Illustration-B of the Indian Evidence Act that an accomplice is unworthy of credit; unless he is corroborated in material particulars. 67. On the aforesaid factual and legal premise, it was contended that the approver Dhani Ram is unworthy of credit, and his statement is not worth placing reliance upon. 68. Before entering into the merits of the submission of the learned counsel for the appellants, it will be useful to refer to the provisions of Section 94 I.P.C. and Section 114 of the Indian Evidence Act for ready reference:- "94. Exclusion of evidence against application of document to existing facts:-When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. 114. Court may presume existence of certain facts:- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." 69. To begin with the objective analysis of the submission of the learned counsel for the appellants, it is apparent that the argument of the appellants' counsel is within the circumference of the words namely, 'contradictory', 'inculpatory' and 'extricating'. (i) According to The Law Lexicon 3rd Edition, the word Contradictory means: "Contradict. The meaning given to the word 'contradict' must include the case of an omission in a previous statement which by implication amounts to contradiction. Tahshildar Singh v. State of U.P., AIR 1959 SC 1012 , 1033. [Indian Evidence Act(1 of 1872), S. 145] Contradiction. An omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point ot any sentence or assertion which is irrecconcilable with the deposition in Court. [Indian Evidence Act(1 of 1872), S. 145] Contradiction. An omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point ot any sentence or assertion which is irrecconcilable with the deposition in Court. Muninajappa v. State AIR 1958 Mys 138, 139." (ii) According to The Law Lexicon 3rd Edition, the word Inculpatory means: "Incriminatory; accusing." (iii) According to "A New English Dictionary", of Oxford, the word Extricate, extricating means: Extricate:- To disentangle (a person or thing); to disengage, set free from, out of (anything that entangles, a state of confinement, difficult, or entanglement). Extrication:- The action of extricating or disentangling; disentanglement from an involved situation, from difficulty or perplexity. 70. Now with the aid of the meaning of the aforesaid three terms which form the basis of the edifice of the arguments raised by the appellants' counsel, the arguments raised are to be considered. 71. Upon perusal of the statement of the accomplice Dhani Ram recorded before the S.D.M, Banda it is apparent that the accomplice Dhani Ram in his statement before the S.D.M. (Ex. Ka.1) has not used the word 'Sabbal'. The relevant portion of the statement is quoted herein below:- **vkWaxu esa fyok x, vkSj jke vorkj rFkk jkenhu us c`ts'k dks mBkdj iVd fn;k vkSj ekjus yxs eSa cpkus dks nkSM+k rks eq>s reapk yxk fn;k fd cpkvksxs rks rqEgsa Hkh ekj nsaxsA c`ts'k ds eqaWg esa diM+k Hkj fn;kA xyk ?kksV dj vkSj eqag esa diM+k ?kqlsM+ dj ekj M+kyk vkSj ekjus ds ckn ulSuh yxkdj nhokj ds mij ls fiNokM+s Qsad fn;kA** 72. The statement of the accomplice Dhani Ram before the S.D.M. Banda has already been held in the preceding part of this judgment not be a confessional statement in terms of Section 164 Cr.P.C. Therefore, legally there is no contradiction in the statement of the accomplice before the S.D.M., and his statement as an approver. It is true that Dhani Ram in his approver statement recorded under Section 306 (iv)(c) Cr.P.C. has stated the use of the murder weapon 'Sabbal'. The same is explicit from the following part of the statement of Dhani Ram as an approver (Ex. Ka. 4) at page 15 of the paper-book. It is true that Dhani Ram in his approver statement recorded under Section 306 (iv)(c) Cr.P.C. has stated the use of the murder weapon 'Sabbal'. The same is explicit from the following part of the statement of Dhani Ram as an approver (Ex. Ka. 4) at page 15 of the paper-book. **jkevkSrkj o jkenhu us ogkW ij c`ts'k dks mBkdj iVd fn;k vkSj jkevkSrkj us lCoy ls c`tsl ds lj ij okj dj fn;k c`ts'k fpyk;k rks jkenhu us mlds eqag esa diM+s Hkj fn;s vkSj mldk xyk nckus yxsA nksuks vkneh xyk nokus yxs vkSj diM+k Bwlus yxs eSaus cpk;k rks jkevkSrkj us eq>s reapk fn[kkdj /kedk;kA c`ts'k ds ejus ds ckn vkaxu esa ulsuh yxkbZ vkSj ge lcus feydj mldh yk'k dks ihNs Qsad fn;kA** 73. Upon drawing a parallel of the aforesaid two statements of Dhani Ram the issue which calls for determination is:- Whether the recital contained in the statement of Dhani Ram as an approver is contradictory of the statement given before the S.D.M, Banda or is explanatory giving better details. 74. The words 'contradictory', 'explanatory' 'detail' are often used casually even when they connote different meanings. A perusal of the statement of the Dhani Ram as an accomplice, as an approver and as P.W. 1 will clearly show that Dhani Ram has throughout been consistent in his evidence regarding the manner in which criminality was committed upon the body of the accused. This part of the statement Dhani Ram is free of any ambiguity throughout and to that there is no opposition. 75. Dhani Ram in his statement under Section 306 (iv)(a) Cr.P.C. has only detailed the entire event containing material particulars which further remain intact in his statement in chief as well as examination in chief as P.W. 1. Thus the credibility of the evidence of the approver Dhani Ram is not wiped out, on this score. 76. Now coming to the second limb of the argument raised by the appellants' counsel it is pertinent to mention here that the approver's statement of Dhani Ram was recorded on 5.5.1979. However, the recovery of the murder weapon Sabbal was made on 8.4.1979. (Ex. Ka. 6) at the pointing out of the accused Ramdeen, and not the approver Dhani Ram. Thus the credibility of the approver statement of Dhani Ram cannot be doubted on that score also. 77. However, the recovery of the murder weapon Sabbal was made on 8.4.1979. (Ex. Ka. 6) at the pointing out of the accused Ramdeen, and not the approver Dhani Ram. Thus the credibility of the approver statement of Dhani Ram cannot be doubted on that score also. 77. This leads us to the third limb of the argument of the counsel for the appellants that the statement of the aprover is not inculpatory. Having reference to the meaning of the words 'inculpatory' and 'exculpatory', it is to be judged what is the nature of the statement of the approver. Whether the same is inculpatory or expulcatory. There is no dispute regarding the fact that the story unfolded by the accomplice Dhani Ram regarding the manner in which the crime was committed is consistent throughout. The approver has assigned the role of assault and strangulation to the two accused namely, Ram Autar and Ram Deen, who have been charged for the offence under Section 302/34 I.P.c. and secondly for an offence under Section 201 IPC. The other accused persons Rameshwar and Gulab have been commuted under Section 302 IPC read with Section 109 IPC and secondly under Section 202 IPC. The approver in his statement has clearly admitted his participation in the crime insofar it relates to the manner in which the body of the deceased was destroyed by three persons namely, Ram Autar, Ram Deen and Dhani Ram. As such, the statement of the approver Dhani Ram is inculpatory in the present case as he admits his participation in the manner in which the body of the deceased was destroyed with. The non-recovery of the country-made pistol which was the weapon used in threatening the approver will not be fatal in the facts and circumstances of the present case. As already pointed out except for the testimony of the approver, there is no other eye-witness account of the incident in question. The laxity on the part of the investigating officer in in not recovering the country-made gun will not be fatal as it is not a weapon used in the commission of the crime. Both the accused person Ram Autar and Ram Deen in answer to question no. 51 in the statement under Section 313 Cr.P.C. have not explained this. The laxity on the part of the investigating officer in in not recovering the country-made gun will not be fatal as it is not a weapon used in the commission of the crime. Both the accused person Ram Autar and Ram Deen in answer to question no. 51 in the statement under Section 313 Cr.P.C. have not explained this. As such the non recovery of the alleged weapon is no ground to wipe out the credibility of the evidence of the approver. Now coming to the last part of the argument i.e. the effect of Section 94 IPC and Section 114 (d) of the Indian Evidence Act upon the statement of the approver. 78. The aforesaid provisions have been referred to earlier. By the very nature of the Section 94 IPC, it cannot be applied against Dhani Ram who is supposed to have been compelled to participate in the crime on gun point. The section does not lend any support to the argument of the appellants' counsel. Firstly, the case in hand is of murder. Secondly, the same is being relied in aid to wipe out the criminal act of Dhani Ram, whereas Dhani Ram has turned an approver.