Fri. Apr 23rd, 2021

Srikant Jain vs State Thr. Cbi on 19 May, 2017

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8. In State (Delhi Administration) Vs. Jagjit Singh (supra) the Supreme
Court reiterated that sub-Section 4 of Section 306 Cr.P.C. casts an obligation
on the prosecution to examine the approver both in the commiting court as
well as in the trial Court even though he has resiled from his earlier
statement and tried to conceal what was within his knowledge with regard to
the offence in question.
9. A similar issue as in the present petition came up before this Court in
M.A. Merchant (supra) wherein this Court held:
“22. The bare reading of Section 306(4) Code of Criminal
Procedure clearly shows the intention of the Legislature that
every person accepting a tender of pardon made under sub-
section (1) shall be examined as a witness in the court of the
Magistrate. Taking cognizance of the offence and in the
subsequent trial and unless a person is examined as a witness,
there cannot be any exceptions of tender of pardon. In this case,
the approver H. K. Jhalla died in the year 1979 before he could
be examined by the Magistrate or by the court of Sessions. Once
there is no examination of the witness by any court as envisaged
by Section 306, the tender of pardon is not complete and
consequently, Section 306 of the Code of Criminal Procedure
cannot be attracted. Their Lordships of the Supreme Court in
Bipin Behari Sarkar (supra) while interpreting this Section have
clearly mentioned that a mere tender of pardon does not attract

Crl.M.C. 3482/2011 Page 8 of 12
the provisions of Section 338 equivalent to 338(1) of new Code.
There must be an acceptance of it. This view has been reiterated
in the subsequent judgments. In the instant case, before H. K.
Jhalla, approver could be examined, he died. The tender of
pardon is never complete unless the concerned witness has been
examined. This is the legislative mandate and has to be
followed. In the instant case, the petition itself cannot be termed
as bona fide because the same has been filed after 209
witnesses have been examined and after a lapse of more than a
decade.”

Source: Indian Kanoon

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