N. Krishnaswami Reddy, J.
1. The revision petition has been filed by the two approvers in P.R.C No. 3 of 1968 on the file of the Court of the District Magistrate, South Arcot, against the order of the said Magistrate dismissing their application for cancelling the pardon tendered to them and permitting them to be arrayed as accused along with others.
2. What happened in this case is this: The two revision petitioners were arrested in June, 1968 for an offence under Section 420, Indian Penal Code, alleged to have been committed by them along with some others for having obtained permits for sugar, maida and wheat and taken delivery of the same on false representations. Subsequently, they gave confessional statements before the Magistrates and later pardon was tendered to them on condition that they would make a clean breast of all the circumstances of the case. On the assurance given by the petitioners, they were removed from the list of the accused and taken as approvers for the purpose of giving evidence in the case against the other accused. The accused concerned in the case were released on bail whereas these petitioners were kept in remind for about seven months and the prior application of one of the petitioners for bail was dismissed on the ground that an approver, if he had been in custody at the time the pardon was tendered to him could not be released on bail. The result of this is that both the petitioners submitted applications from the prison on 16th January, 1969 stating that they did not know anything about the case, that they were induced by the Police Officers to give confessional statements, that they have been unnecessarily kept in jail for about seven months without being released on bail, that they were willing to be made as accused, so that they can prove their innocence by facing a trial and that they might be released on bail after removing them from the list of witnesses and transposing them as accused along with the others. The learned District Magistrate dismissed the applications on the ground that he had no jurisdiction or power to transpose the petitioners as accused and that they could not be released on bail as they are approvers.
3. The main question in this case is whether in the circumstances and on the facts of this case, the petitioners can be transposed as accused when they have once accepted the pardon tendered to them on the promise made by them that they would make a clean breast of the facts of the case.
4. There is no dispute that the petitioners made judicial confessions before the Magistrate and on that, they were taken as approvers on the assurance given by them that they will disclose the true facts of the case. It appears that they accepted the pardon on condition for the time being. The petitioners retracted from the confessional statements made by them and stated that they did not know anything about the case and that they have been coerced by the Police Officers to make confessions and they have also been promised before making such confessions that they would be taken as approvers. It is very significant to note that the petitioners submitted those applications before they were put in the box. The enquiry has not admittedly commence. The pardon was tendered on condition that the petitioners will disclose the true facts. The relationship between the person who tendered the pardon and the person who accepted the pardon on condition is that of contractual relationship. Before the performance of the contractual promise, it will be open for the person who accepted the pardon to resile and refuse to accept the pardon. I am of the view that before the petitioners were put in the box to give evidence which is the stage for them to make up their minds to give evidence, they could refuse to give evidence and take the position of the accused.
5. In Basireddi Narappa v. Emperor (1924) 45 M.L.J. 613 : A.I.R. 1924 Mad. 391, a Division Bench of this Court in similar circumstances held that when an accused person rejects the conditional pardon tendered to him and refuses to give evidence an approver before he is put into the box, his action does not amount to forfeiture of his pardon so as to make his case fall under Section 339 and bar his joint trial with other accused persons. The Division Bench further held that the acceptance of the pardon should continue in force till the accused actually gives evidence and then if he forfeits the pardon by not making a full and true disclosure of facts within his knowledge he should be separately tried. In that case also, what happened was that the accused promissed at first to make a clean breast of all the circumstances of the murder and he was tendered a pardon conditional on his doing so. Before he was treated as an approver and put into the box, he made a statement to the Court that he did not want the pardon and that he wished to be tried and that the pardon might, therefore, be cancelled. On these facts, the Division Bench held that it was open to the accused who had accepted the pardon in the first instance, to resile from that pardon and to say that he does not want the pardon and that he is not willing to give evidence but wishes to be tried, so that his character may be cleared, and that the pardon-in those circumstances cannot be treated as an accepted pardon. With great respect, I agree with the decision of the Division Bench and I am bound by it. Unfortunately, this decision was not brought before the lower Court. I find' that the lower Court had relied upon a decision of a single Judge in Karuppa. Servai v. Kundaru : AIR1952Mad833 . That decision has no bearing on this point. The question involved in that case was whether an approver can be released on bail in view of the mandatory provisions under Section 337, Criminal Procedure Code, when he continues to be an approver.
6. I, therefore, direct that the petitioners be transposed as accused and be tried along with the other accused. They will be removed from the list of witnesses.
7. Crl. M. P. Nos. 503 and 504 of 1969.--In view of the fact that I have transposed the petitioners as accused, there is no impediment for releasing them on bail. The mandatory provisions of Section 337 (3), Criminal Procedure Code, will apply only to the approvers. The petitioners are released on bail on each of them executing a bond in a sum of Rs. 1,000 with two sureties each for a like amount to the satisfaction of the District Magistrate, South Arcot.
8. The Criminal Revision Petition and the Criminal Miscellaneous Petitions are allowed.