STATE OF MAHARASHTRA versus ABU SALEM ABDUL KAYYAM ANSARI AND ORS.

Citation: [2010] 12 S.C.R. 204 · Decided: 05-10-2010 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2010] 12 S.C.R. 204 
STATE OF MAHARASHTRA 
v. 
ABU SALEM ABDUL KAYYAM ANSARI AND ORS. 
(Criminal Appeal No. 1925 of 2008) 
OCTOBER 5, 2010 
[P. SATHASIVAM AND R.M. LODHA, JJ.) 
Code of Criminal Procedurt:., 1973: ss. 306 to 309 -
C Forfeiture of pardon granted to an accomplice - Right of co-
accused to cross-examine such accomplice - Held: If pardon 
is granted to an accomplice u!s. 307 for making him approver, 
but, later on pardon is forfeited on a certificate given by public 
prosecutor u/s. 308 then permission cannot be granted to co-
D accused to cross-examine such accomplice - On forfeiture 
or withdrawal of pardon, the accomplice-approver is relegated 
to the position of accused and does not remain a hostile 
witness and he is liable to be tried separately - Constitution 
of India, 1950 - Article 20(3) - Evidence Act, 1872 - s.114, 
E 132, 133, 154 - Terrorist and Disruptive Activities (Prevention) 
Act, 1987 - s.19. 
Pursuant to the letter by respondent no.3 expressing 
his desire to disclose truly and fully the facts pertaining 
to the conspiracy which took place at Dubai in 
F connection with a murder case, respondent no.3 was 
granted pardon under Section 307, Cr.P.C. and the 
prosecution was granted permission to examine him as 
a witness in the trial. However, when he was called as 
witness (approver) for the prosecution, he refused to tell 
G the court about the conspiracy. The Public Prosecutor 
issued a certificate under Section 308 Cr.P.C. to the effect 
that the approver did not comply with the condition on 
which pardon was tendered to him and, therefore, he may 
H 
204 
STATE OF MAHARASHTRA v. ABU SALEM ABDUL 205 
KAYYAM ANSARI AND ORS. 
be tried separately. 
A 
The co-accused requested the court to allow him to 
cross-examine the approver who was certified by the 
Public Prosecutor to have committed breach of 
conditions of pardon. The Public Prosecutor opposed the 
B 
said request on the ground that once the pardon was 
forfeited, the witness stood relegated back to the status 
of accused and as such would lose his status as witness 
of the prosecution and, therefore, his entire evidence 
though on record could not be used for any purpose and 
C 
as such the question of cross-examining such hostile 
witness by other accused would not arise. The 
Designated Court allowed the request of the accused. 
Aggrieved, the State filed the instant appeal. 
Allowing the appeal, the Court 
HELD: 1.1. Section 306 Cr.P.C. makes a provision for 
tender of pardon to accomplice. The salutary principle of 
tendering a 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 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. Section 306 
Cr.P.C. empowers the Chief Judicial Magistrate or a 
Metropolitan Magistrate to tender a pardon to a person 
supposed to have been directly or indirectly concerned 
D 
E 
F 
in or privy to an offence to which the section applies, at 
any stage of the investigation or inquiry or trial of the 
G 
offence on condition of his making a full and true 
disclosure of the whole of the circumstances within his 
knowledge relative to the offence. The Magistrate of the 
first class, under Section 306, is also empowered to 
H 
206 
SUPREME COURT REPORTS 
[2010] 12 S.C.R. 
A 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 Cr.P.C. provides that at any time after 
B 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 offen;.;e, tender a pardon on the 
c same condition to such person. The expression, 'on the 
same condition' occurring in Section 307, obviously 
refers to the condition indicated in sub-section (1) of 
Section 306, namely, on the accused making a full and 
true disclosure of the whole of the circumstances within 
0 his knowledge relative to the offence and to every other 
person concerned, wh

Excerpt shown. Read the full judgment & AI analysis in Lexace.