Person Granted Pardon & Examined As Approver U/S 343 BNSS Not Required To Remain In Custody Until Termination Of Trial: J&K&L High Court
The High Court of Jammu & Kashmir and Ladakh has held that a person who has been tendered pardon under Section 343 of BNSS, corresponding to Section 306 of the CrPC and examined as an approver, cannot be detained in custody in an absolute manner until the termination of trial. The Court clarified that the statutory purpose of custodial detention of an approver is to safeguard him and...
The High Court of Jammu & Kashmir and Ladakh has held that a person who has been tendered pardon under Section 343 of BNSS, corresponding to Section 306 of the CrPC and examined as an approver, cannot be detained in custody in an absolute manner until the termination of trial. The Court clarified that the statutory purpose of custodial detention of an approver is to safeguard him and secure truthful testimony, not to punish him.
The Court was hearing a petition under Section 528 of BNSS, 2023, challenging the Trial Court's order, which had rejected the bail application of the petitioner, Ajaz Ahmed, in an FIR registered under sections 120-B, 121, 122, 201, 7/25 Arms Act, and multiple provisions of ULAP Act.
The matter was considered by Hon'ble Mr. Justice Mohd Yousuf Wani, who observed:
“The provisions of Section 306(4)(b) are intended to protect the approver from the possible indignation, rage, or resentment of his associates in a crime and to ensure the approver provides full and true disclosure, not to punish him”.
The petitioner, a Government teacher, was implicated in a case FIR concerning the recovery of arms, ammunition, and posters of a banned outfit from co-accused individuals. During the course of investigation, it was established that he was indirectly involved under compulsion and threat from co-accused Gulshan Ahmed, and had no prior knowledge of the criminal intent or conspiracy.
After the filing of the final report/challan, the petitioner expressed willingness to give a truthful account of the facts, conditional on receiving pardon under Section 306 of the Code. The Chief Judicial Magistrate granted pardon and recorded the petitioner's statement as an approver. Subsequently, he was examined at trial, providing full and consistent testimony in chief and cross-examination. Despite compliance, his bail application was rejected by the Trial Court solely on the ground that Section 306(4)(b) requires detention until trial termination.
The petitioner before the High Court contended that he was innocent, had complied fully with the conditions of the pardon, and that continued detention violated his fundamental right to liberty under Article 21 of the Constitution of India. He submitted that coercion and lack of awareness of co-accused activities had led to his initial involvement in the case
Court's Observation:
The High Court emphasized that Section 306(4)(b) of the Code must be read alongside the words “unless he is already on bail”, which indicates that detention is not mandatory and is conditional upon circumstances. The purpose is to provide protective custody, ensuring that the approver is shielded from potential threats by co-accused or associates and is able to give a truthful statement, the Court explained.
The Court observed that the petitioner had provided a consistent and uncontradicted account of the events both during tender of pardon and trial examination. The Court noted that custodial detention is primarily protective and is not intended to punish the approver. It further clarified that once the approver satisfies the conditions of pardon by making a full and true disclosure, the Trial Court retains discretion to release him on bail under reasonable conditions, balancing the statutory intent with Article 21 rights.
The Court remarked,
“… although the provisions of Section 306(4)(b) of the Code corresponding to the provisions of Section 343(4)(b) of the BNSS, ordinarily require the detention of an approver until the termination of the trial, yet High Court in an appropriate case can exercise its inherent powers under Section 482 of the code corresponding to Section 528 of BNSS to release him on bail. 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 Court also highlighted that the prosecution may continue to assess whether the approver has concealed any material facts or provided false evidence under Section 308, and that any concerns can be addressed by separate proceedings. Until such determination, however, the fundamental right to liberty prevails, and prolonged detention serves no protective or legal purpose once compliance is demonstrated, Justice Wani expounded.
Further, the Court referred to Supreme Court precedent in Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80, reiterating that detention of an approver is meant to prevent him from recanting under influence of co-accused, and to protect him from their possible retaliation. The High Court also cited Mohammad Lateef Deedar v. State, 2010 Supreme (J&K) 308, observing that the discretion to grant bail remains with the Trial Court even after pardon is tendered, subject to protective considerations.
The Court reinforced that detention cannot be converted into punitive incarceration once the approver has complied with the conditions of the pardon. It further observed that prolonged detention when the approver is innocent and has cooperated fully would violate Article 21, and the Trial Court was legally obligated to consider bail under reasonable terms.
In view of the observations the High Court quashed the order of the Trial Court and directed that the petitioner may be considered for bail, subject to reasonable conditions to ensure compliance with the terms of pardon and his safety.
Case Title: Ajaz Ahmed v. UT of J&K through SHO Police Station Poonch & Superintendent, District Jail, Poonch.
Citation: 2026 LiveLaw (JKL)