Continued Detention Of Approver Who Complied With Pardon Conditions May Violate Article 21; S.306(4)(b) CrPC No Bar: J&K&L High Court
The Jammu & Kashmir and Ladakh High Court has held that the continued detention of an approver who has complied with the conditions of pardon and stood by his disclosure without contradiction may violate Article 21 of the Constitution, which guarantees the sacred human right of personal liberty.
The Court clarified that Section 343(4)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 306(4)(b) of the CrPC) does not operate as an absolute bar, and the High Court can exercise its inherent powers to release an approver on bail in appropriate cases.
The Court was hearing a petition filed under Section 528 BNSS challenging the order dated April 5, 2025 passed by the learned Special Judge designated under the NIA Act, Poonch, which had rejected the bail application of the petitioner, an approver who had been tendered pardon under Section 306 CrPC in a case registered under the Unlawful Activities (Prevention) Act, 1967, the Arms Act, and the IPC.
The bench of Justice Mohammad Yousuf Wani observed,
“The continued detention of an approver despite compliance with pardon conditions may violate Article 21 of the Constitution guaranteeing a sacred human right of personal liberty.”
The petitioner was apprehended in 2023 along with two other persons from a vehicle. During search, arms, ammunition, cash and posters of a banned outfit were recovered. After the presentation of the charge-sheet, the petitioner expressed willingness to give a true account of the facts and circumstances if tendered pardon.
The Chief Judicial Magistrate tendered pardon to the petitioner and recorded his statement as an approver. Subsequently, the petitioner was examined as a prosecution witness at the trial where he stood by his earlier statement and was subjected to cross-examination. Thereafter, he applied for bail, which was rejected by the trial court primarily on the ground that Section 306(4)(b) CrPC mandates detention until termination of the trial.
Court's Observation:
The Court examined the object of Section 306(4)(b) CrPC, noting that the requirement of detaining an approver is not intended to punish him for coming forward to give evidence, but to protect him from possible indignation and rage of his associates, and to prevent him from the temptation of saving them. However, the Court held that this provision cannot be interpreted to defeat Article 21.
Referring to its earlier judgment in Mohammad Lateef Deedar v. State, 2010 Supreme (J&K) 308, the Court reiterated that the High Court is vested with jurisdiction to enlarge an approver on bail even before conclusion of trial in appropriate cases. The Court observed that the expression “unless he is already on bail” preserves the power of grant of bail.
The Court further held that the custody of an approver is co-terminus with fulfillment of the conditions of pardon. Once the approver has been examined as a prosecution witness and has maintained his earlier statement without contradiction, his continued detention serves no legitimate purpose. The Court clarified that Section 306(4)(b) CrPC appears to be directory and not mandatory, and any strict interpretation would amount to acknowledging a procedure that is not fair, just and reasonable.
The Court also relied upon its judgment in Bilal Ahmed Lone v. UT of Jammu and Kashmir, CRM M No. 656/2023, wherein it was held that the inherent powers of the High Court under Section 482 CrPC (now Section 528 BNSS) cannot be taken away by the fetter contained in Section 306(4)(b) CrPC, and the High Court can grant bail to an approver if required to secure the ends of justice.
The Court observed that an approver who has already been examined as a prosecution witness and has complied with the terms and conditions of the pardon by maintaining his earlier statement without contradiction should not be detained indefinitely.
The Court noted that the right of the Public Prosecutor to seek indictment under Section 308 CrPC continues till the closure of evidence on both sides, but where the approver prima facie appears to have complied with the conditions of pardon and is ready to be enlarged at his own risk, he deserves to be released on bail subject to reasonable terms and conditions.
In view of these observations, the Court allowed the petition, set aside the impugned order, and directed the release of the petitioner on bail on furnishing surety and personal bonds of Rs. 1 lakh each to the satisfaction of the Registrar Judicial, Jammu Wing, and the Superintendent of the concerned jail.
Case Title: Ajaz Ahmed v. UT of J&K & Ors.
Citation: 2026 LiveLaw (JKL)