A.H. Khan, J.
1. The facts giving rise to this revision shortly stated are that a dacoity was committed in a village in Bhind District and several persons were arrested in that connection. On 29-9-52, accused Dalchand made a confession and on 26-11-53, he was tendered pardon and accepted it. In the course of trial, Dalchand (who had become an approver) before his examination as a witness, made an application that he was not willing to give his evidence. Thereupon the Special Judge, Bhind, passed an order that approver Dalchand would now be tried as an accused along with other accused persons in the case before him. The Special Judge also granted bail to the accused, who was at that time in the custody of the Police. Against this order the Government have filed this revision.
2. The learned Government Advocate has made three submissions:
First, that according to Section 339 of the Criminal Procedure Code, accused Dalchand can not be tried without a certificate from the Public Prosecutor:
Two, that such a person who was tendered pardon and who has accepted it cannot be tried jointly with other accused persons because of the proviso to Section 339(1) of the Criminal Procedure Code;
Three, that the learned Special Judge erred in releasing the accused on bail.
3. It is an unusual case in which an approver has renounced his pardon, and where he has expressed his unwillingness to be examined as a prosecution witness. Section 339 of the Cr. P. Code contemplates that when an approver is guilty of a breach of promise and gives either false evidence or wilfully conceals any thing essential in the case, he shall forfeit his pardon and such a person cart be tried in respect of the offence for which he was tendered pardon. This section does not expressly say as to how the approver is to be treated if he refuses to give evidence on behalf of prosecution, but impliedly, it is obvious that the holding back of his evidence amounts to wilfully concealing the facts which are essential for the prosecution.
In this view of the matter, an approver where he gives false evidence or is unwilling to step in the witness-box on behalf of the prosecution, forfeits his pardon and there is no doubt that he can be tried for the offence in respect of which he was tendered pardon. Section 339 requires that in cases, where an approver has forfeited his pardon, the Public Prosecutor shall move the Court by a certificate. In the present case, the Public Prosecutor has not Riven a certificate for the trial of Dalchand. Apart from this, what is most important is that according to proviso to Clause 1 of Sub-section1 of Section 339, Cr. P. C., such a person, namely, the approver cannot be tried jointly with other accused in the dacoity case. The learned Special Judge has overlooked this Proviso and has relied upon a case reported in Basireddi Narappa v. Emperor, AIR 1924 Mad 391.
The learned Judges of the Madras High Court no doubt have taken a view that when an accused person rejects the conditional pardon tendered to him and refuses to give evidence as an approver, his action does not amount to forfeiture of his pardon so as to make his case fall under Section 339, and that in the circumstances there is no bar to his joint trial with other accused persons. It seems that there was conflict of opinion as to whether an approver, who has broken the condition of pardon could be tried (for the offence for which he was tendered pardon) along with other accused or not. This controversy was resolved by the enactment of Proviso that was added to Clause 1 of Sub-section1 of Section 339 of the Cr. P. Code in year 1923. Perhaps the attention of the learned Judges of the Madras High Court was not directed towards the proviso, which had been incorporated a few months earlier.
Moreover, in examining the dictum on merits, the view of the learned Judges that while rejecting the pardon, the accused does not forfeit his pardon, requires reconsideration. If the rejection of the pardon by the approver does not amount to a forfeiture of his pardon (as stated by the learned Judges of the Madras High Court) then the pardon continues and if the pardon continues, he can be tried neither jointly nor separately for any offence. Anyway, the proviso which was added to a Section 339(1) by the Amendment of 1923 sets all doubts at rest and it is now clear that an approver who has resiled from his promise to make a full and true disclosure of facts within his knowledge, cannot now be tried jointly with other accused in the case. The learned Special Judge is manifestly in error in overlooking this proviso.
4. With regard to the prayer of the learned Government Advocate that the approver should not have been released on bail, I do not feel inclined to interfere with the order of bail because it seems that the approver was in the custody for period of about 4 years, while all the other accused in this case were granted bail.
5. For reasons stated above, I would allowthe revision and set aside the order of the SpecialJudge with regard to the joint trial of Dalchandalong with other accused in the dacoity case. Theorder of bail is maintained.