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2018 DIGILAW 125 (JHR)

Anosh Ekka v. State of Jharkhand

2018-01-16

RONGON MUKHOPADHYAY

body2018
ORDER : Rongon Mukhopadhyay, J. 1. Heard Mr. Mahesh Kumar Tewari, learned counsel for the petitioner, Mr. Binod Singh, learned S.C. (L & C) representing the respondent Nos. 1 and 2 and Mr. R S. Mazumdar, Married senior counsel appearing on "behalf of the respondent No. 3. 2. In this writ application, the petitioner has prayed for the following relief's. "(i) For a declaration that the right to their trial in a criminal case is a basic human and fundamental right to a person guaranteed under Article 21 of the Constitution of India. (ii) For declaration that the order dated 07.04.2016 passed in S.T. No. 29 of 2015 by the learned Additional Sessions Judge, Simdega is against the object and spirit of Section 307 of the Cr.P.C. and the same is violative of the fundamental right of fair trial guaranteed to the petitioner under Article 21 of the Constitution of India. (iii) For setting aside the order dated 07.04.2016 passed in S T No. 29 of 2015 by the learned Additional Sessions Judge, Simdega whereby the learned court has allowed the application of the prosecution to make the accused Bikram Gope @ Barood Gope, who is an active member of the banned extremist organisation PLFJ and is involved in various cases of serious nature, as an approve in terms of the provisions contained in Section 307 of Cr.P.C. read with Section 164 of Cr.P.C. (iv) For a direction/order to the Police administration of District Sundega to inquire into the Complaint Petition of the petitioner filed from Sundega Jail on 09.01.2016 leading to the institution of Sundega P.S. Case No. 11 of 2016 corresponding to G R No. 33 of 2016, which is still pending investigation since 27.01.2016. (v) For issuance of direction/order to the learned Trial Court not proceed in the instant matter i.e. S T. No. 29 of 2015, till the adjudication and final disposal of the instant writ petition before this Hon'ble Court. (vi) For a direction/order to transfer S.T. No. 29 of 2015 to some other court in view of the fact that the petitioner has no faith in the Court of Shri Ram Babu Gupta, learned Additional Sessions Judge, Simdega considering his partisan conduct in the matter." 3. (vi) For a direction/order to transfer S.T. No. 29 of 2015 to some other court in view of the fact that the petitioner has no faith in the Court of Shri Ram Babu Gupta, learned Additional Sessions Judge, Simdega considering his partisan conduct in the matter." 3. The factual matrix which arises in this writ application is with respect to institution of a criminal case being Kolebira P.S. Case No. 58 of 2014 in which it was alleged by the informant that his elder brother who was a Para Teacher in Government School, Jatatand, Kolebira was kidnapped by 10 accused persons on 26.11.2014 at about 2 P.M. It has been alleged that one teacher namely Sanju Nayak gave this information to the headmaster of the School Who in turn had informed the informant, leading to institution of the police case. 4. In course of investigation on 27.11.2014, the body of the kidnapped person namely, Manoj Kumar was recovered from the forest. Investigation having been concluded, the same led to submission of charge-sheet against the petitioner on 24.02.2015 for the offences under Sections 364(A)/216/120(B)/34/171C (2)(a)/171F/302/201 of I.P.C, Section 27 of the Arms Act and Section 17 of the CLA Act. After cognizance was taken, the case was committed to the Court of Sessions where charges were framed against the accused After examination of 19 witnesses on behalf of the prosecution, S.T. No. 29 of 2015 was transferred to the Court of Additional Sessions Judge, Simdega. However at that time of point, only the investigating officer was left to be examined. A supplementary case diary was submitted and 3 more witnesses were sought to be examined. After the transfer of the case, the Additional Advocate General of the State was appointed as a Public Prosecutor to conduct further prosecution. Thereafter all the witnesses including the first Investigating Officer and the second Investigating Officer stood examined. An application was submitted on 07.01.2016 by Vikram Gope @ Barood Gope expressing his desire to become an approver to repent his crime. This person was the main accused who was arrested on 14.07.2015 and in his confessional statement he had admitted to have committed the murder of Manoj Kumar. An application was submitted on 07.01.2016 by Vikram Gope @ Barood Gope expressing his desire to become an approver to repent his crime. This person was the main accused who was arrested on 14.07.2015 and in his confessional statement he had admitted to have committed the murder of Manoj Kumar. Armed with the application submitted by Vikram Gope @ Barood Gope on 07.01.2016 itself, the Deputy Commissioner, Simdega wrote to the Special Public Prosecutor to do the needful and thereafter an application was filed based on the desire of Vikram Gope @ Barood Gope to turn approver which led to passing of the impugned order 07.04.2016 which is under challenge in the present application. 5. It has been stated by Mr. Mahesh Tewari, learned counsel for the petitioner that the learned trial court did not apply its judicial mind while allowing a frivolous application made by Vikram Gope @ Barood Gope seeking permission to turn into an approver. Submission has been advanced that the impugned order dated 07.04.2016 does not contain any reasons. It has been stated that the prosecution had not made any application for making Vikram Gope @ Barood Gope an approver as the prosecution had merely forwarded the application before the learned trial court. Learned counsel submits that the entire matter has been left at the discretion of the learned trial court as the Spl. P.P. did not at all examine the evidence of the witnesses and had merely forwarded the letter of Vikram Gope @ Barood Gope to the trial court. Mr. Tiwary, learned counsel submits that it was incumbent upon the Spl. P.P. to apply his independent judicial mind on the purported application of Vikram Gope @ Barood Gope expressing his desire to become an approver. Submitting further Mr. Tiwary states that Vikram Gope @ Barood Gope did not at all state about his intention to make a full and true disclosure. It has been stated that the application of Vikram Gope @ Barood Gope was not in terms of Form No. 24 of Rule 50 of the Jharkhand Jail Manual and the same is merely a written application without any basis and without stating as to the role played by the petitioner in the alleged incident of murder. It has been stated that the application of Vikram Gope @ Barood Gope was not in terms of Form No. 24 of Rule 50 of the Jharkhand Jail Manual and the same is merely a written application without any basis and without stating as to the role played by the petitioner in the alleged incident of murder. Learned counsel further submits that Vikram Gope @ Barood Gope is an accused in 50 cases and therefore, he was easily persuaded by the State Government to turn into an approver The entire administration was geared up against the petitioner which would be evident from the manner in which the application was made by Vikram Gope @ Barood Gope and the haste at which the said application was filed before the learned trial court. It has also been stated that when Vikram Gope @ Barood Gope had already confessed about his guilt, his turnaround should have been handled with suspicion as he has kept silent all along and suddenly has come up with a desire to repent for his crime. Furthering his argument, it has been stated that on 28.07.2015 Vikram Gope @ Barood Gope had given an application in the prescribed format as per the Jail Manual stating that he was being pressurized by the police to take responsibility of the murder of Manoj Kumar. The petitioner had filed a rejoinder to the same in which it had been disclosed that Vikram Gope @ Barood Gope had demanded Rs. 10 lacs from the petitioner and in case of non-fulfillment, he shall depose against the petitioner. This information was given to the C.J.M., Simdega which was treated as a Complaint and ultimately the said Complaint was registered as Simdega P.S. Case No. 11 of 2016, in which investigation is still pending. Learned counsel thus concludes that the objects and purport in relation to grant of pardon has neither been properly considered nor adhered to by the prosecution nor by the learned trial court since there appears to be absolutely no reason which would justify allowing the application filed by the prosecution. 6. Mr. Binod Singh, learned S.C. (L & C) appearing for the State has opposed the prayer made by the petitioner and has stated that the discretion lies with the Court to grant pardon which has been exercised in a judicious manner. 6. Mr. Binod Singh, learned S.C. (L & C) appearing for the State has opposed the prayer made by the petitioner and has stated that the discretion lies with the Court to grant pardon which has been exercised in a judicious manner. Learned counsel submits that it is prerogative of the State to make a person approver and the court has only to see whether his evidence is credible or not. Learned State counsel submits that the accused will definitely have the opportunity to disprove the testimony of the approver. It has thus been submitted that the present application is liable to be dismissed. 7. Mr. R.S. Mazumdar, learned senior counsel appearing on behalf of respondent No. 3 has stated that the petitioner does not have any locus to challenge the impugned order allowing Vikram Gope @ Barood Gope to turn into an approver. Learned senior counsel has referred to various pronouncement of the Hon'ble Supreme Court in which the scope and object of making an accused an approver has been laid down. It has been stated that even an accused with a criminal background can be made an approver provided, he comes out with a full and true disclosure of the actual incident. Learned senior counsel further submits that Section 307 of Cr.P.C. is very clear with respect to the fact that before a judgment is passed, the court below has the power to tender a pardon to obtain the evidence of any person privy to the conspiracy or the plaintiff hatched to commit a crime. It has been stated that the application submitted by Vikram Gope @ Barood Gope was duly forwarded by the Deputy Commissioner, Simdega to the Spl. P. P. who on going through the same had filed an application before the learned trial court which was allowed on 07.04.2016 and the impugned order being exhaustive and had dealt with all the aspects of the matter does not require any interference. 8. Upon hearing the learned counsel for the respective parties, it is to be seen as to whether the approach of the prosecution or the order passed by the learned trial court is in accordance with law in the backdrop of the objects guiding the grant of pardon to an accused. 9. Section 306 of the Cr.P.C. deals with the tender of pardon to an accomplice and the same reads as under: "306. 9. Section 306 of the Cr.P.C. deals with the tender of pardon to an accomplice and the same reads as under: "306. Tender of pardon to accomplice. - (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof." 10. The power to grant tender of pardon has been enunciated in Section 307 of Cr.P.C. which suggest that "at any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person." 11. Whether the petitioner has the locus standi to challenge the Impugned order dated 07.04.2016 or not as harped upon by the learned senior counsel appearing for the respondent No. 3 is to be looked into at the first instance. 12. Mr. R.S. Mazumdar, learned senior counsel appearing for the respondent No. 3 in support of his contention has referred to the case of "Ranadhir Basu v. State of W.B." reported in (2000) 3 SCC 161 . 13. This judgment considers the question as to whether the person who is granted pardon must be examined in the presence of an accused and whether the accused has a right to appear and cross-examine him at that stage which means at the stage when the Magistrate had examined the said person in his Chamber and therefore it was held that there was no justification of examining the would be approver before the accused. The accused at that stage did not have the locus standi to cross-examine the would be approver. The accused at that stage did not have the locus standi to cross-examine the would be approver. This judgment does not support the contention of the learned senior counsel for the opposite party No. 3 that the petitioner does not have the locus to challenge the impugned order. In this context, reference has also been made to the case of "CBI v. Ashok Kumar Aggarwal & Anr." reported in (2013) 15 SCC 222 and the relevant portion is quoted herein under: 40. "So far as the entertainment of the case at the behest of the respondent by the High Court is concerned, we may state that he may not have a legal right to raise any grievance, particularly in view of the law laid down by this Court in Ranadhir Basu v. State of W.B. However, the revisional powers under Section 397 read with Section 401 CrPC can be exercised by the court suo motu, particularly to examine the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceeding of the inferior court. These two sections in CrPC do not create any right in the favour of the litigant but only empower/enable the High Court to see that justice is done in accordance with recognised principles of criminal jurisprudence. The grounds of interference may be, where the facts admitted or approved, do not disclose any offence or the court may interfere weltered the facts do not disclose any offence or weltered the material effects of the party are not considered or where judicial discretion is exercised arbitrarily or perversely.(See also Everest Apartments Coop. Housing Society Ltd. Vs. State of Mahrashtra and State of U.P. Vs. Kailash Nath Agarwal.)" 14. This judgment discloses the ground of interference and the same includes where facts do not disclose an offence or where the material effects of the parties are not considered or where the judicial discretion is exercised arbitrarily and perversely. 15. The scope and object of Section 306 of Cr.P.C. has been aptly dealt with in the case of "Suresh Chandra Bahri" reported in AIR 1994 SC 2420 , wherein it has been held as follows: 43. "The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. "The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. Consequently in the event the suspicion which is attached to the evidence of an accomplice is not removed his evidence could not be acted upon unless corroborated in material particulars. But where the suspicion is removed and the evidence of an approver is found to be trustworthy and acceptable then that evidence may be acted upon even without corroboration and the conviction may be founded on such a witness. Here in this connection it would be appropriate to make reference to the provisions of S. 133 of the Evidence Act which deal with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accomplice, in other words, a guilty companion in crimes, shall be a competent witness while the second part states that conviction is net illegal merely because it is based on the uncorroborated testimony of an accomplice. But if we read S. 133 of the Evidence Act with illustration (b) of S. 114 of the Evidence Act it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in S. 133 illustration (b) to S. 114 of the Evidence Act lays down "that an accomplice is unworthy of credit, unless he is corroborated in material particulars". A combine reading of the two provisions that is S. 133 and illustration (b) of S. 114 of Evidence Act go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to S. 133 a conviction is "not illegal or in other words not unlawful " merely because it is founded on the uncorroborated testimony of an accomplice while accepting, that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of S. 114 of the Evidence Act with a view to emphasis that the rule contained therein as well as in S. 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to S. 114 is placed in Chapter VII of Evidence Act while S. 133 is inserted in Chapter IX of the Act. The better course was to insert the illustration (b), to S. 114 as an explanation or in any case as a proviso to S. 133 of the Act instead of their insertion at two different places and that too in different Chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to S. 114 provides a rule of caution to which the Courts, should have regard. It is now-well Settled, by a long series of decisions that except in circumstances of special nature it is the duty of the Court to raise the presumption in Sec. 114, illustration (b) and the Legislature requires that the Courts should make the natural presumption in that section as would be clear from the decisions which we shall discuss hereinafter. 44. In Bhiva v. State of Maharashtra, AIR 1963 SC 599 , this Court took the that the combined effect of Ss. 133 and 114, illustration (b) may be stated as follows: According to the former, which, is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. There should be corroboration of the approver in material particulars and qua each accused. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. There should be corroboration of the approver in material particulars and qua each accused. Similar observations were made by this Court in Ram Narayan v. State of Rajasthan, (1973) 3 SCC 805 : ( AIR 1973 SC 1188 ), in the following words: "Section 133 expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because proceeds on uncorroborated testimony of a accomplice. In other words this sector renders admissible such uncorroborated testimony. But this section has to be read along with illustration (b) to Section 114. The latter section empowers the court to presume the existence of certain facts and the illustrations elucidate what the court may presume and make clear by means of examples as to what facts the court shall have regard in considering whether or not the maxims illustrated apply to given case before it. Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute permits the conviction of an accused person on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) of S. 114 strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be present to the mind of the Judge." 16. The object of exercising the powers of pardon has also been dealt with in the case of "Bangaru Laxman v. State" reported in (2022) 1 SCC 500, wherein it was held that the main purpose is to prevent the failure of justice by allowing the offender to escape from the lack of evidence It has also been held that the power to grant pardon is contemplated in a situation wherein a serious offence is alleged to have been committed by several persons and with the aid of the evidence of the person who had been granted pardon, the offence committed may be proved. 17. 17. The view expressed in the case of "Suresh Chandra Bahri" (supra) has further been reiterated in the case of "Narayan Chetanram Chaudhary v. State of Maharashtra" reported in (2000) 8 SCC 457 . 18. Strenuous argument has been put forwarded by the learned counsel for the petitioner that Vikram Gope @ Barood Gope being a history-sheeter and having as much as 50 cases pending against him could not be allowed to become an approver as his, evidence will be tainted and adulterated and whether such evidence can be trustworthy, have not been considered by the learned trial court. 19. In the case of "Saruvandbhavan and Govindaswamy v. State of Madras" reported in AIR 1966 SC 1273 , it was held as follows: "The antecedents of the approver do not really make him either better or worse. His evidence can only be accepted on its own merits and with sufficient corroboration." 20. This view was followed in the case of "CBI v. Ashok Kumar Aggarwal" (supra) wherein it was further held as follows: 28. "Section 306 CrPC is verbatim to Section 337 of the old Code. There is no change at all with respect to the power to grant pardon. More so, exercise of judicial power in relation to grant of pardon is required so as to remove any suspicion of political consideration or to ensure that the pardon is in the interest of justice (Law Commission of India, Forty-eighth Report, July 1972). The Constitution Bench in Saravanabhavan considered the issue of veracity/reliability of the evidence of an approver and not who can be made an approver or what is the role of the court while considering the application for grant of pardon." 21. The object of Section 306 of Cr.P.C. which although has been dealt with in the preceding paragraphs, but this Court once again feel inclined to refer to the case of "Mrinal Das and Others v. State of Tripura" reported in (2011) 9 SCC 479 , wherein it was held as follows: 33. "The principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home. "The principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home. The object of Section 306 of the Code of Criminal Procedure, 1973 (in short "the Code") is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon, the offence may be brought home to the rest. This section empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Under Section 306 of the Code, the Magistrate of the First Class is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime. Section 307 of the Code vests the court to which the commitment is made, with power to tender a pardon to an accomplice. 34. An accomplice who has been granted pardon under Section 306 or Section 307 of the Code gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender, was made and the Public Prosecutor gives his certificate under Section 308 of the Code to that effect, the protection given to him can be lifted. Section 306(4) mikes it clear that the person accepting a tender of pardon should be examined as a witness first in the Court of the Magistrate and subsequently in the trial court. Section 306(4) mikes it clear that the person accepting a tender of pardon should be examined as a witness first in the Court of the Magistrate and subsequently in the trial court. Once an accused is granted pardon under Section 306, he ceases to be an accused and becomes witness for the prosecution." 22. An accused can be made an approver only on the condition that he has to make a full and true disclosure of the facts concerning the perpetrators of the offence and the role played. In case an accused resiles from his commitment or does not disclose fully the actual events which had taken place while committing the offence gets relegated to his position as an accused. This view can be drawn from the judgment in the case of "State of M.P. v. Abu Salem Abdul Kayyum Ansari & others" reported in (2010) 10 SCC 179 . 23. In the celebrated case of "Lt Commander Pascal Fernandes v. The State of Maharashtra & Ors." reported in (1968) 1 SCR 695 , it was held with respect to the powers of the trial court to grant pardon as follows: "11. It follows that the powers of the Special Judge are not circumscribed by any condition except one, namely, that the action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also a condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor. The disclosure must be complete as to himself and as to any other person concerned as principal or abettor. There is no provision for the recording of reasons for so doing, nor is the Special Judge required to furnish a copy to the accused. There is no provision for recording a preliminary statement of the person. 12. There can be no doubt that the Section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him. 12. There can be no doubt that the Section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a. person not so arraigned. The power so conferred can also fee exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the Section to show that the Special Judge must he moved by the prosecution. He may consider an offer by an accused as in this case. The action, therefore, was not, outside the jurisdiction of the Special judge in this case." 24. Mr. Tiwary while submitting that the learned trial Court did not at all endeavor to find out the nature of evidence which he is likely to give, has referred to the same judgment. The relevant portion of which reads as follows: 14. "The next question is whether the Special Judge acted with due propriety in his jurisdiction. Here the interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider. Before the Special Judge acts to tender pardon, he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused. What is meant by public policy is illustrated by a case from Public Commission Court (Reg. v. Robert Dunne, (1851) 5 Cox Cr. Cos 507) in which Torrens, J. on behalf of himself and Pernn, J. observed as follows : "From what I can see of this case, this witness Bryan, who has been admitted as an approver by the Crown is much the more criminal of the two on his own showing: ..........I regret that this witness, Bryan, has been admitted as evidence for the Crown and thus escaped being placed upon his trial. It is the duty of magistrates to be very cautious as to whom they admit to give evidence as approvers, and they should carefully inquire to what extent the approver is mixed up with the transaction, and if he be an accomplice, into the extent of his guilt. " 15. In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8 (2) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly applies to the Special judges he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring, as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency, and must, therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approvers testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution things that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approvers testimony, it will indubitably agree to the tendering of pardon. If the prosecution things that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approvers testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the Public Prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided. Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail. It will accordingly be dismissed. Appeal dismissed." 25. In the case of "Laxmipat Choraria & Ors. v. State of Maharashtra" reported in (1968) 2 SCR 624 , it was held that: "To keep the sword hanging over the head of an accomplice and to examine him as a witness is to encourage perjury." 26. By citing this judgment, Mr. Mahesh Tewari, learned counsel for the petitioner has tried to highlight the fact that since 50 cases are pending against Vikram Gope @ Barood Gope, he in all likelihood will become a puppet in the hands of a prosecuting agency and therefore, his evidence cannot be a fair or truthful evidence. 27. On consideration of the factual as well as the judicial pronouncements cited by the learned counsel for the respective parties so far as the question of locus, standi of petitioner in filing the present application is concerned, it is held that the petitioner does have a right to challenge the impugned order dated 07.04.2016 is allowing the application of the prosecution for examining the Vikram Gope @ Barood Gope as an approver will directly affect the right of the petitioner. 28. 28. The contention of the petitioner that Vikram Gope @ Barood Gope being already an accused in 50 cases could not be granted pardon, is concerned the same, cannot be a basis for refusal to grant pardon as his evidence has to be accepted on its own merits and with sufficient corroboration. As has been held in the case of "Saravanabhavan and Govindaswamy v. State of Madras", (supra) and quoted above, the antecedents of the "approver do not really make him either a better or worse witness. Therefore, such contention on the part of the learned counsel for the petitioner is hereby negated. 29. So far a the factual aspects of the case leading to submission of an application for granting pardon to Vikram Gope @ Barood Gope is concerned, the non-submission of the application in its proper format would be a mere aberration and the same cannot take away the desire of Vikram Gope @ Barood Gope to turn into an approver. It may be noted herein at the cost of repetition that Vikram Gope @ Barood Gope is one of the main accused in the present case and he had also confessed about his committing the murder of Manoj Kumar, pursuant to his arrest on 17.12.2015. Since the prosecution evidence had virtually ended and since an inclination was shown by Vikram Gope @ Barood Gope to depose in a trial as a witness, it cannot be said that the prison authorities or the Deputy Commissioner, Simdega or for that matter the Spl P. P. acted in haste. The application submitted by the Spl. P. P. had prayed for taking steps under Section 307 of Cr.P C. and merely because it has been noted in the said application that the office of the Special Public Prosecutor was requested to file an application before the trial court, the same could not be construed to mean that the learned Special Public Prosecutor has not applied his mind or for that matter, he had merely forwarded the letter of the Deputy Commissioner along with the application submitted by the Vikram Gope @ Barood Gope to the learned trial court. 30. In "Lt. 30. In "Lt. Commander Pascal Fernandes v. The State of Maharashtra & Ors." (supra), it was held that if the prosecution thinks that the tender of pardon will be in the interest of a successful prosecution of the other offenders whose conviction is not easy without such testimony, it would indubitably agree to the tender of pardon. The application filed by the prosecution therefore reveals that the prosecution wanted permission from the Court to make Vikram Gope @ Barood Gope an approver. If the prosecution was not in favour of such act, there was no occasion for the learned Special Public Prosecutor to have filed the application to grant pardon to Vikram Gope @ Barood Gope. Although, a note of caution has been indicated in the case of "Lt. Commander Pascal Fernandes v. The State of Maharashtra & Ors." (supra) that the learned trial court must not take on himself the task of determining the propriety of tendering pardon and in the circumstances of the case, but the learned trial court seems to have exhaustively considered the necessity of granting pardon to Vikram Gope @ Barood Gope. 31. As a cumulative result of the discussions made hereinabove, I do not find any cause to interfere in the impugned order dated 07.04.2016 and accordingly, this application without any merit is hereby dismissed.