Panchapakesa Ayyar, J.
1. This is a petition filed by one of the accused in a murder case (R. C. No. 17 of 1951) for setting aside the order of the Sessions Judge of Madurai directing the release of an approver (P. W. 1), and for his re-arrast and detention in custody pending disposal of R.C. No. 17 of 1951, and the sessions trial therein, if committal ensues.
2. I have perused the records and heard Mr. V. Rajagopalachariar for the petitioner, the learned Public Prosecutor for the State, and the learned counsel for the approver. The learned Public Prosecutor does not oppose the petition and, indeed, supports it. He relies upon the mandatory provisions of Section 337(3) Criminal Procedure Code, that an f.p prover, unless he is already on bail at the time he accepts the tender of the pardon, this approver was not on bail then), shall be detained in custody until the termination of the trial. In this case, even the preliminary enquiry is not concluded, let alone any trial begun in the sessions court. There is absolutely no doubt in my mind that neither the inquiring Magistrate nor the Sessions Judge has got the right to set at naught the mandatory provisions of Section 337(3) Criminal Procedure Code, based on very salutary principles of public policy and public interest, and release an approver who is not on bail at the time of his acceptance of the tender of pardon, after the approver has deposed only in the committing Magistrate's court, that is, in the course of the preliminary enquiry, and before the inquiry has ended, and, if committal ensues, before he has deposed at the trial in the sessions court truly and fully to matters within his knowledge.
An approver is not an accused, and cannot be made an accused till he has failed to disclose the entire facts within his knowledge truly and fully, and without concealing anything or giving false evidence. Only when he has concealed anything he knows, or given false evidence, can he be treated as an accused: see the ruling of a Bench of this Court, consisting of Wallis and Munro JJ., in -- 'Arunachellam v. Emperor', 31 Mad. 272, and the ruling of another Bench of this Court, consisting of Wallis and Pinhey JJ., in -- 'Kullan v. Emperor', 32 Mad. 173. In the latter ruling, it is specifically mentioned that the condition on which the approver is tendered a pardon is broken if he withdraws before the sessions court statements made before the committing Magistrate's court or even statements in his examination-in-chief in the sessions court itself in cross-examination. So, if committal ensues, the stage at which it is to be seen whether the approver has kept his condition or not is the stage of the trial in the sessions court, and in the light of his evidence in chief-examination, cross-examination and re-examination in the sessions court compared with his statement in the Committal court. That is also obvious from Section 337(3), Criminal Procedure Code, itself where the word used is 'trial', and not 'enquiry.' In -- Khalli Behera v. State', 16 C. L.T. 186, Das and Panigrahi JJ. have observed as follows :
'A person who accepts a pardon also accepts the grave risk of departing from the truth and being charged with the offence if he abuses the privilege granted to him, The statement of an approver is not a confession, and can be given in evidence against him under Section 339(2) Criminal Procedure Code',
as a kind of exception to the law of confessions. So, it is clear to me that an approver cannot be put in the same position as an accused, and the provisions of Sections 497 and 498, Criminal Procedure Code, cannot apply to him. Like a lunatic who does an act constituting the crime but is not convicted and punished for it because he was of unsound mind at the time he committed the act, an approver is also a person who is 'directly or indirectly concerned in or privy to the offence' under Section 337(1) Criminal Procedure Code, and is let off without conviction or punishment because he accepts the tender of a pardon and makes a true and full disclosure of all the facts relating to the crime within his knowledge. So, even if Sections 497 and 498, Criminal Procedure Code apply, it would not be a fit case for releasing an approver on bail in a murder case like this.
3. Besides, an approver has to be kept in safe custody till the conclusion of the trial (or inquiry if no committal ensues) like a sealed will in a will forgery case and then disposed of according to merits. He is not to be allowed to be let off on bail, when he is not on bail at the time he is tendered a pardon, but is to be kept in safe custody, free from police control or influence, or the influence of the accused. If he is released on bail, after he has given a statement in the enquiry court in full conformity with the statement given by him before the District Magistrate, it is obvious that the Police and the accused can both get at him freely thereafter, and there will be no guarantee that he will give out the whole truth at the trial if committal ensues. Truth, at the trial, in the case of an approver, does not mean sticking to the very statement given by him before the District Magistrate or in the committal court, but speaking to the true facts as they occurred, for Truth is one, and not two. The Public Prosecutor, before he can make an approver an accused, has to certify, under Section 339 (1), Criminal Procedure Code, that, in his opinion, the approver has wilfully concealed anything essential or given false evidence or not complied with the conditions on which the lender of pardon was made. It is of vital importance both to the accused and to the public that an approver should not be treated like an ordinary accused or witness, but strictly according to the provisions of the Criminal Procedure Code, Section 337 (3) being the prime provision regarding him. There may be a little doubt whether an approver can be released after he has given his full evidence in the sessions court, and where the Public Prosecutor does not certify that there is anything concealed or false, even before the trial is over; but there is no doubt at all that he cannot be released on bail at an earlier stage (if committal ensues) when he was not, on bail at the time he was tendered the pardon and accepted it. Usually, a Sessions Court releases an approver in a murder case after the whole trial is over, and the verdict is given and judgment delivered, because only at that stage can it be seen whether the approver's evidence has been a full and true disclosure, of all the facts he knows, or not.
4. I have no doubt whatever, therefore, in agreeing with Mr. Rajagopalachari, the learned counsel for the petitioner, and with the learned Public Prosecutor, and in disagreeing with the contentions of the learned counsel for the approver, and cancelling the order of the Sessions Judge, Madurai, releasing this approver on bail. I accordingly cancel that older and direct his re-arrest and detention in safe custody in a separate cell in Madurai Jail pending disposal of R. C. No. 17 of 1951 on the file of the Stationary Sub Magistrate, Nilakottai, and the conclusion of the trial (if committal ensues).
5. The enquiry and trial (if committal ensues) of the case may be expedited as far as practicable, as the learned counsel for the approver says that there are nearly 60 witnesses, and many exhibits, and this approver has the prospect of being kept in custody for several months unless an order for expedition is given by me.