ATUL DEPAK

'Faman afa wa a-salah fa-ajruhu ala-Allahi’ (But whoever forgives & makes reconciliation-his/her reward is due from Allah)

CASE ANALYSIS: STATE OF MAHARASHTRA v ABU SALEM (2010) 10 SCC 179

FACTS OF THE CASE

In March 1995, an influential builder of Mumbai Pradeep Jain was murdered along with his brother Sunil Jain for refusal to part with certain land. The murder was alleged to have been committed at the behest of the underworld and land mafias operating internationally. [1]

Though the prime suspect, in this case, was the infamous underworld don Abu Salem, the police initially arrested few people after investigation charge-sheeted them under various provisions of the IPC including sections 302, 307, 120B, 23, 114, Arms Act and TADA.[2][3]

In September 2002, govt of India extradited Abu Salem from Portugal. As soon as he landed in India, he was taken into custody by the Maharashtra Anti-terror squad. He was charged along with 4 other persons for allegedly hatching the conspiracy in Dubai to murder the builder Pradeep Jain. In July 2006, the accomplice no. 3 Riyaz Ahmad expressed his intention of to become a government approver on the condition of being pardoned by the government.[4]

The prosecution agreed to this offer and the Investigating Officer made an application for granting pardon to the said accomplice under S.307 of the CrPC on the condition of disclosing fully the facts and truths of the case. The court readily granted the pardon under S.307 of CrPC and listed him as a witness to be examined by the prosecution side. When he was later called in the witness box by the prosecution side, he did not cooperate fully and made various excuses for the adjournment of the court. After one or two more such attempts, the court revoked his pardon for the breach of the terms and condition and ordered that he be tried separately for the alleged murder of the Builder Mr. Pradeep Jain.

In September 2008, the defense side made an application requesting therein for the cross-examination of Mr. Riyaz Ahmad. 

The prosecution opposed this application on the ground that if the pardon is revoked, the witness relegates back to the status of the accused who is to be tried separately for the same offenses and hence cannot be cross-examined by the defense side. That his entire evidence given as a witness shall remain on record but he cannot be cross-examined.

Defense side, on the other hand, argued that once the witness enters the witness box and makes a certain disposition, the accused has a right to contradict him by cross-examination u/s 162 of CrPC 1973.[5] He argued that defense has every right to cross-examine hostile witness and approver. The court accepted the request of the defense side and allowed the cross-examination.

The prosecution preferred to appeal against this order.

ISSUE & REASONING

The major issue in the appeal was whether the accused has the right to cross-examine an approver who has relegated back to the position of accused under S.308 of CrPC.

Supreme Court began by appreciating the rationale behind granting pardon u/s 306 of the Cr.PC 1973. The court said that this provision is meant for unravelling the truth in certain grave and heinous offenses committed by a group of people. And if it is difficult to prove the case, then the prosecution can take the help of one of the accused by offering him lesser punishment or pardon on the condition fully disclosing the facts and truth relating to the case. Chief Judicial Magistrate or Metropolitan magistrate and magistrate of first-class are empowered under S.306 of CrPC to grant such pardon after receiving application regarding that from the investigating officer. S.307 empowers the court to tender pardon to the accomplice of the accused. S.308 talks about revoking the pardon at any anytime if the approver is not cooperating fully in disclosing fully the facts and truth of the case. The person who is rendered the pardon under S.306 or S.307 is protected from prosecution in the case in which he has turned approver.

In the case of AJ Perris v State of Madras 1954, the court said that the moment an accused is granted pardon under S.306 0r S.307, he ceases to be an accused in that particular case and rather becomes a witness for the prosecution side. 

In the State v Hiralal Girdharilal Kothari 1959, the court said that if the person who has been granted pardon fails to comply with the conditions of the pardon, the pardon is revoked and he is relegated back to the position of an accused.[6]

In the State v. Jagjit Singh, 1988 court said that the power to grant pardon also carries with it the limitation of the protection being removed if the person fails to comply with the condition of the pardon.[7] But the protection once granted will be revoked only when the prosecution grants a certificate as such that the approver has turned hostile or is not cooperating fully with the prosecution side. In this court, the court also said that-

The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court. It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under Section 308 of the Code of Criminal Procedure not only for the offense in respect of which pardon was granted but also in respect of other offenses.’

Supreme Court interpreted this otherwise and said that this cannot mean allowing cross-examination of an approver whose pardon has been withdrawn on the certificate of the public prosecutor. Then it went on to say that in Jagjit Singh’s case prosecution had not tendered certificate for withdrawal of pardon. 

In the words of the supreme court, once the pardon given to an accused or accomplice is withdrawn on the certificate of the public prosecutor, he is immediately relegated back to the position of an accused and all evidence rendered by him are nullified in toto and they cannot be used against other co-accused.

The court then appreciated the provisions of the Evidence Act relevant for this case-

Talking about S.114(b) of Evidence Act 1872, the court said that the court may presume all statements of an accomplice to be unworthy unless corroborated with other pieces of evidence.

Then taking about S.132 of the Evidence Act, court death with the question as to whether a witness can refuse to answers put to him. The court said that a witness cannot refuse to answer the question. He can only refuse when it directly or indirectly leads to his incrimination. 

S.133 is quite dangerous for the accused because it talks about the evidentiary value of an accomplice against the accused. Under this section, an accomplice is regarded as a competent witness against the accused and an accused can be convicted based on his statements. Moreover, the conviction cannot be set aside solely because the testimony of the accomplice was not corroborated.

S.315 of CrPC 1973 is helpful for the accused as it prohibits taking of evidence from the accused using force. Only when the accused requests in writing for giving evidence, it can be taken from him. The court also discussed the provisions of the Indian Constitution to add force on the point that an accused cannot be compelled to give evidence against himself. 

Finally the court concluded by saying that all these provisions are not against the proposition that an accomplice can be granted pardon under S.306 and 307 of CrPC 1973 and on granting such pardon he becomes a witness for the prosecution but on revocation of such pardon on certificate by the prosecution, he is relegated back to the position of an accused and all the evidence provided by him against the accused stands nullified for the trial. Hence there is no question him being cross-examined by the prosecution side.

And thus the Supreme Court overturned the decision of the High Court, saying thereby the HC erred in law by allowing the cross-examination of accomplice Riyaz Ahmad after he turned hostile and his pardon was revoked. That his pardon of conditional one that he would cooperate fully and disclose all facts and truths attached with the case but he reneged on that promise and hence his pardon was revoked on the request of the prosecution. All his statements can no longer be used against the accused, hence there is no question for his cross-examination.

CONCLUSION

This case dealt with the provisions of both CrPC 1973 and Evidence Act 1872 in determining as to whether an accomplice in a heinous crime who has turned an approver and pardoned by the court under 306 can be cross-examined by the accused in case his pardon is withdrawn under S.308 of CrPC. After taking into consideration the totality of the facts and circumstances and a cumulative reading of the provisions of the CrPC and Evidence Act, the Supreme Court held that such an accomplice cannot be cross-examined by the accused. To Justify this court went into the rationale of cross-examination and the right of the accused to contradict the statements and pieces of evidence given by a witness against him in a particular case. Court said that the moment, the pardon granted to the accomplice is withdrawn, he is relegated back to the position of a co-accused and all his statements and evidence against the accused stands nullified and since he is no longer a witness for the prosecution side, there is no question and need for his cross-examination by the accused. The court said that the whole purpose of cross-examination is to contradict or prove wrong the statements of a witness by the accused against him. So when the approver is no longer a witness against the accused and when his erstwhile statements made in the position of an approver are no longer admissible, then there is no question of cross-examination in such a case.

The court also took the help of S.114(b) of Evidence Act 1872 to show that statements of an approver, in any case, are unreliable and unworthy of credit unless duly corroborated by other shreds of evidence and if the approver is relegated back to the position of an accused, all his statements against the accused are no longer admissible and it is immaterial whether they were corroborated or not. 

The point to be noted here is such reading of this provision goes against the interests of the accused almost in same manner as S.27 and S.29 of the Evidence Act 1872.

Whereas S.26 Evidence Act 1872 protects the accused from the harms of custodial confession, S.27 provides that any discovery made by the police on information provided by the accused in police custody can be proved against so far as it distinctly relates to the fact thereby discovered. S.29 provides that a confession is not vitiated merely because it has been fraudulently obtained from the accused such as under promise of secrecy or when the accused is slightly drunk etc. Though the supreme court has clarified that such confession is extracted by prefacing fraud on the accused while he is in police custody, it is inadmissible but still, it gives a huge leeway to the police or investigating agencies to discover other facts which are detrimental to the interest of the accused. 

Similarly in this case as well, though an accomplice whose protection was revoked and his statements no longer be used against the accused, yet the police can discover vital pieces of evidence based on the statements made by the accomplice and can corroborate them with other evidence. S.133 provides that conviction based on such statements cannot be vitiated even if they were not corroborated. 

Even though the police cannot directly use the Statements of the accomplice against the accused, it can discover other vital pieces of evidence based on such statements which can be admissible as evidence if duly corroborated. To conclude, these provisions are helpful for the police and investigating agencies in solving heinous crimes by enticing the accomplice with the offers of pardon or lesser punishment under the garb of S.306 and 307 of CrPC, but it is of-course very detrimental to the interest of the accused.