While setting aside and clearing all the huge fog that was completely engulfing on a very all-important question as to whether an accused can withdraw application to become an approver once pardon is granted, we see that none other than the Nagpur Bench of the Bombay High Court has itself in one of the most learned, laudable, logical landmark and latest oral judgment titled State of Maharashtra vs Madhuri Badrinarayan Gote in Criminal Writ Petition No. 472 of 2023 that was pronounced recently on August 11, 2023 has stepped forward taking a big leap in providing a most significant legal clarification pertaining to the status of an accused who becomes an approver in a criminal case. The Court very specifically held that once an accused’s application to become an approver is accepted and they are granted a pardon, they are legally bound to fulfill their duty as a prosecution witness and cannot withdraw their application at will without adhering to the procedures outlined in Section 308(1) of the Code of Criminal Procedure. It must be pertinently mentioned here that while rejecting a Washim woman’s contention, we see that the Nagpur Bench specifically ruled in this case that a person cannot withdraw his or her application for turning approver (witness for the prosecution) against other accused, once it has been accepted and pardon granted.

To recapitulate, we see in this leading case that the wife Madhuri Badrinarayan Gote had first turned approver against her husband who had allegedly kidnapped his 15-year-old niece, administered intoxicants and strangulated her before burning the body. The couple was made accused after which the woman filed an application to become approver for testifying against the husband. We see that after Madhuri was pardoned, she changed her mind and filed an application that she did not want to become approver citing ignorance of law which was upheld by the Sessions Court. Washim police challenged the Sessions Court ruling in the High Court. The Single Judge Bench of Nagpur Bench of Bombay High Court comprising of Hon’ble Mr Justice Govinda Sanap clearly, cogently and convincingly held that:
There is no provision under the Criminal Procedure Code (CrPC) which empowers/enables a person to make an application for becoming an approver and then to pray for its withdrawal. On acceptance of the tender of pardon, the accused gets discharged from the case and s/he becomes witness for the prosecution.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Nagpur Bench of Bombay High Court comprising of Hon’ble Mr Justice Govinda Sanap sets the ball in motion by first and foremost putting forth in para 2 that:
Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties.

To put things in perspective, the Bench envisages in para 3 that:
In this writ petition, filed by the State, challenge is to the order dated 18.05.2023 passed by the learned Additional Sessions Judge, Washim whereby the learned Sessions Judge rejected the application made by the Special Prosecutor. In this application Exh. 69, the prayer was made by the prosecution to reject the vakalatnama filed by the Advocate Mr More for the approver and to shift the respondent approver Madhuri Gote to Central Jail, Akola. The respondent herein referred to as ‘Approver’ was co-accused in crime No. 23/2020 registered at Police Station Washim City for the offences punishable under Sections 302, 364-A, 363, 201 & 120-B of the Indian Penal Code. The crime involved murder of 15 years old niece of the informant. The approver was accused No.2. The accused No.1 is the husband of the approver. As per the case of the prosecution, the minor girl was kidnapped, taken to a secluded place, administered intoxicant and strangulated. The accused burnt the death body and destroyed the evidence. The investigation in the crime led to filing of the chargesheet against accused No.1 and the approver. Learned Magistrate committed the case to the Sessions Court for trial.

As it turned out, the Bench then discloses in para 4 that:
During the pendency of the case before the Sessions Court the approver made an application dated 30.11.2021 and expressed her desire to become an approver. The copy of this application, made by the approver, was provided to the learned Special Public Prosecutor, appointed for conducting the case. Learned Special Public Prosecutor thereafter made an application and prayed before the Court to tender pardon to the approver/accused No.2.

As we see, the Bench then reveals in para 5 that:
The say of the approver was called by the learned Judge. The accused No.2 gave her say and agreed to become an approver and to narrate the true facts related to the crime, on oath before the Court. Learned Additional Sessions Judge, Washim by order dated 17.02.2022 rejected the application made by the approver as well as the subsequent application made by the learned Special Public Prosecutor.

Quite ostensibly, we then see that the Bench states in para 6 that:
The approver/accused No.2 being aggrieved by this order challenged the same before this Court. This Court (Coram: Vinay Joshi, J) set aside the order dated 17.02.2022 passed by the learned Additional Sessions Judge, Washim. This Court (Coram: Vinay Joshi, J) by way of consequential relief allowed the application made by the prosecution to tender pardon to the approver on condition of accused No.2 making a full and true disclosure of the whole of the circumstances within her knowledge relating to the offence.

Do note, the Bench notes in para 7 that:
It is therefore apparent that from the date of this order, being an approver, accused No.2 became the witness for the prosecution. It is not out of place to mention that on the date of acceptance of an application of the approver and on tender of a pardon, the approver by deeming fiction gets discharged from the case. The approver then becomes the witness and does not remain an accused.

Be it also noted, the Bench notes aptly in para 8 that:
In this case, the charge was framed on 06.05.2021. The application to become an approver was made after framing the charge. Recording of evidence of prosecution witness No.1 commenced on 02.01.2023. By the time the impugned order was passed, three witnesses were examined by the prosecution. On 19.04.2023, in the midst of recording of the evidence of prosecution witnesses the approver filed a pursis and contended that she has not committed the crime. She has further stated that the application made by her to become an approver was due to ignorance of law and on the advice of the advocate. She further contended that she was withdrawing her application, made to became an approver.

To be sure, the Bench observes in para 9 that:
On 26.04.2023, one Advocate Mr More appeared for the approver and made an application at Exh. 67. He made a prayer to allow him to obtain the signature of the approver on Vakalatnama and to appear for her. Learned Special Public Prosecutor then made an application Exh. 69 and prayed for rejection of the vakalatnama filed by Advocate Mr More and to shift approver Madhuri Gote to Central Jail, Akola. In this application, learned Special Public Prosecutor stated that the pardon tendered by the Court, on terms and conditions, to the approver cannot be allowed to be withdrawn in this manner. For the purpose of withdrawal of the pardon the procedure provided under Section 308 of the Code of Criminal Procedure, 1973 (For short ‘the Cr.P.C.’) has to be followed. It was stated in the application that vakalatnama filed by the Advocate for the approver was not in accordance with law.

On expected lines, the Bench then specifies in para 10 that:
This application at Exh.69 was opposed by the Advocate for the accused. It was contended that the application made to become an approver was not pressed by the approver and therefore, she was relegated to her original position as an accused.

Further, the Bench lays bare in para 11 stating that:
Learned Additional Sessions Judge by order dated 18.05.2023 rejected the application made by the prosecutor. Against this order the state has filed this writ petition. The approver is represented by Advocate Mr S. S. Das.

Most significantly, what truly constitutes the cornerstone of this notable judgment is then succinctly laid bare in para 20 wherein it is mandated that, In my view, in order to relegate the approver to the position of an accused the stage and the conditions as contemplated under Section 308 (1) of the Cr.P.C. must be established in a given case. In this case, respondent/approver did not step into the witness box. Before stepping into the witness box she made this application to withdraw her application to become an approver. Learned Judge in this case has completely missed the very essence and substance of the provisions of law.

The decision in the case of Salem is not applicable in this case, In order to rely and apply the decision in the case of Salem the strict compliance of Section 308 (1) of the Cr.P.C. must be ensured by the Court. It is needless to say that whether to give evidence or not to give any evidence after stepping into the witness box on the oath would be the prerogative of the witness. Witness cannot be compelled to make a particular statement. It needs to be stated that if the approver fails to comply the conditions of a pardon then the consequences provided under law have to be considered. The approver therefore cannot be tried with the remaining accused.

The trial of the approver has to be separate. The object is in-built in the provision. The main object is to get the first hand account of the incident through the mouth of the approver, who in every case happens to be a guilty partner with the co-accused. In my view, therefore, learned Judge has not properly appreciated the facts, law and the decisions in the case of Abu Salem (supra). Learned Judge has completely misdirected himself in addressing the question. Therefore, the order is required to be quashed and set aside. Accordingly, the writ petition is allowed.

As a corollary, the Bench then directs in para 21 that:
The order dated 18.05.2023 passed by the learned Additional Sessions judge, Washim is quashed and set aside.

Furthermore, the Bench directs in para 22 that:
Learned Additional Sessions Judge consistent with the pardon tendered to the approver and accepted by the approver on terms and conditions shall examine the approver as and when she is presented before him as a witness.

In addition, the Bench directs in para 23 that:
As far as the application made by the prosecution to transfer the approver from Washim Central Prison to Akola Central Prison is concerned learned Additional Sessions Judge shall decide it in accordance with law, keeping in mind the facts and circumstances obtained on record.

Finally, the Bench concludes by holding in para 24 that:
The writ petition Stands disposed of. Rule made absolute in the above terms.

All told, the bottom-line of this noteworthy judgment by the Nagpur Bench of the Bombay High Court is that the accused cannot withdraw his/her application to become an approver once pardon is granted. The accused becomes bound to fulfill their duty as a prosecution witness and so they definitely can’t be permitted to withdraw their application at will! Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh