Indefinite Incarceration of Approvers — In Need of Necessary Amendments

-By Abhinav Sekhri

Prologue: The Budget Leaks of 1956

Aschara Lal Mehra was, presumably, one of many Sales Managers in Bombay’s Mercury Paints and Varnishes Ltd.; a pre-independence firm which continues to exist today. Perhaps Mehra was dissatisfied with the income Mercury Paints gave him, because when he was introduced to one Davinder Pal Chadha from Delhi in February of 1955, he agreed to help him in a little money-spinning scheme that Chadha had devised. After working him for months, Chadha had managed to coax one of the officers involved in printing of the Budget to leak some inputs regarding the impending changes to taxation regimes. Mehra agreed to help Chadha sell this information, for a cut of the profits. 

Mehra helped Chadha make contact with one of his former employers Hira Lal Kothari, a stockbroker. Kothari promised “suitable compensation” if he made profits on the information. Mehra also setup a meeting with Nand Lal More, who said it was too late to fully use the information, but he would still share his profits if there were any. When the Budget was announced the next day, February 28, 1955, Chadha’s inputs were proved correct, and both he and Mehra made good money from their escapade. While giving them Rs.500, Nand Lal More told them to try and bring the information earlier next year. Which is exactly what they did. In 1956, Chadha managed to sneak a copy of the entire Budget proposals out almost a week prior to it being tabled. He took a first class train to Bombay on February 21, taking with him two copies of the Budget. Mehra did one better and made notes on the proposals, and together they met various persons to sell these secrets. Chadha left before the Budget was announced on February 29, where his information was proven accurate yet again. 

This time, though, there was a problem. Persons to whom they sold information, and persons to whom this was probably relayed ahead, had been too obvious in their movements that it quickly became apparent in the news that something was amiss. A newspaper had reported on February 29 itself that the conduct of Mill-owners in Ahmedabad suggested they knew that excise duty on cloth would be increased. A big hue and cry followed in Parliament where on Saturday, March 3, a formal motion for adjournment was moved citing the alleged leak of budget proposals in Bombay. Understandably, Mehra was agitated when Chadha told him about taking his cut from the money Messrs Kothari and More had paid. Mehra’s instincts were to be proven correct this time. Upon reaching Delhi on March 8, Davinder Pal Chadha was arrested from the railway station, and two days after that the police landed up at Mehra’ door. They searched his house, found the notes he had made of the Budget proposals, and placed him under arrest.

Mehra decided to turn his back on Chadha and the rest: He sought to be made an Approver in the case, and on March 23 the Additional District Magistrate granted him a pardon under Section 337 of the Code of Criminal Procedure 1898, on the condition of him making a full and true disclosure regarding the whole circumstances pertaining to the case. Upon being granted a pardon Mehra was sent to jail. The reason was a legal mandate, prescribed in Section 337(3) of the old Code, which corresponds with Section 306(4) of the present Criminal Procedure Code of 1973. It says that every person accepting pardon “shall, unless he is already on bail, be detained in custody till the termination of trial” This mandate is the subject of this post.

The Logic: It is for your own Good

Why must the law require that an approver should be detained in custody till the termination of trial? For their own good, primarily, and as a result for the good of the case. The ‘turncoat’ approver was not just another witness. Rather, he was seen as being at high risk of being accosted by his former confederates, thereby rendering jail a safer place. In the words of the Court of the Judicial Commissioner for Sind, the approver needed to be in custody because “not only is he likely to abscond and not appear when he is wanted, but there is every fear of his being tampered with and of his tampering with other prosecution evidence.” [Abdul Majid v. Emperor, AIR 1927 Sind 173]. The Madras High Court put it more eloquently in 1952 when it compared the need for this provision akin to the need to keep a sealed will locked up in a will forgery case, and justified the need for detention until conclusion of the trial by reminding us that “Truth at the trial, in the case of an approver, does not mean sticking to the very statement given by him before the District Magistrate in the committal court, but speaking to the true facts as they occurred, for Truth is one, and not two.” (emphasis in original)

There can be no qualms with this logic. But does it warrant the legal regime put in place by Section 337(3), and now by Section 306(4), is the question. Two things stand out: firstly, that necessary custodial detention is only specified for one sub-class of approvers but not all of them, which does not make sense as approvers already out on bail would equally be susceptible to pressures leading them to resile from their version. Secondly, more importantly for this post, is the absolute nature of this mandate — a person shall be detained. Is not a total ban on release arguably contrary to the logic of saving the approver for the case, for what if the approver falls sick, or what if undue delay in proceeding with the trial leads the approver to change his mind, especially if his former friends are out on bail as accused persons? 

Which brings us back to the case of Aschara Lal Mehra, the approver. Granted pardon on March 23,  1956, Mehra would have undoubtedly been wooed by the police with promises of a speedy trial to offset any reservations he and his lawyers might have had given the mandate of Section 337(3). This was not to be, as Mehra suffered the entire Delhi summer in custody, while waiting for the investigation to conclude and trial to begin. Moreover, throughout this period, his (presumably) former friends were all enjoying life out on bail. When the police finally filed a report in July of that year, Mehra’s counsel presumably saw an opportunity to get his client out of custody. He argued that Mehra had been pardoned for offences under, amongst others, the Prevention of Corruption Act 1947, but the police had filed a report alleging offences punishable under the Official Secrets Act. This meant that he was just another accused, and ought to be granted bail on parity with the other accused persons. He could not convince the trial court, but won in a revision before the Sessions Court, and got his client out in one case. 

But Mehra could not be released because the main case, where was indeed an approver, was at a standstill.  There was no alternative but move a petition before the High Court of Punjab and Haryana (which, at that time, held jurisdiction over Delhi as well), which gave its decision on June 25, 1957.  

Carving out scope for Judicial Discretion

Mehra’s counsel argued that it was a “strange irony of fate” that while the accused were out on bail, his client continued to languish in custody. “If a murder can be released on bail” he argued, then “why a person who had been granted pardon should not be accorded a similar facility?” The answer for the High Court was simple — because Section 337(3) said the same facility could not. At some length, the Court in A.L. Mehra v. State discussed the provision, and concluded that: (i) there was no power left with a court to release the approver, and asking for “bail” was inaccurate as anyway we were dealing with a witness; (ii) a court did not have inherent powers to grant release either, and; (iii) the “shall” was mandatory, and the best a Court could do if faced with a situation of mounting delays was to direct an expeditious hearing. Indeed the High Court observed it would be a “travesty” if Mehra remained confined as “it could not have been the intention of the legislature that a person who has been granted pardon should be kept in confinement for an indefinite period.” 

Curiously, after handing down these findings, the order took a very different turn. The High Court noted that the clause referred to termination of a trial. This had to imply that “there is a trial in progress and its object is to secure the evidence of the approver“. In the facts of this case, it appeared that the prosecution had not made its mind up about whether the accused would even be prosecuted for all the offences. In such a situation, where “there is no trial and no likelihood of trial” then the inherent powers of the High Court would allow directing release. Which is what was finally ordered — Mehra was released. He went on to fulfil the conditions of his pardon at the trial which ended up in convictions for all accused [Two of whom, Messrs. Kothari and More, overturned their convictions in appeal, which provided the facts which I have extensively used thus far].  

New Code, Same Woes

As we already know, the enactment of a new Criminal Procedure Code in 1973 did not change the position in respect of allowing release of approvers already in custody at the time they were granted pardons. This was in spite of the Law Commission taking note of the difficulty this clause could pose in its 41st Report, especially given a gradual decline in how quickly trials proceeded. The Commission was of the opinion that the powers of High Courts to grant release in appropriate cases would prove sufficient to remedy any injustices, hinting at an approval of the stance taken by the High Court in A.L. Mehra which we discussed above.

This view was crystallised by two Full Bench decisions, one from the Delhi High Court and another from the Rajasthan High Court, delivered around a decade after the new Code was passed. Both Courts agreed that Section 306(4)(b), as it now stood, could not be read as erecting an absolute prohibition on releasing approvers. Besides general considerations of common sense, these Courts found support in the new life breathed into the fundamental right to life and personal liberty after Maneka GandhiA law that eschewed all judicial discretion and mandated custodial detention surely could not withstand scrutiny under the “just, fair, and reasonable” standard now espoused by the Constitution. Accordingly, both these Courts read into Section 306(4)(b) a measure of judicial discretion which allowed the High Court to exercise its inherent powers and release approvers in appropriate cases.That these verdicts were also guided by a vein of practicality is made apparent in the order of the Single Judge which referred the matter to a Full Bench of the Delhi High Court, where specific remarks were made about the increasing delays in trials and the demoralising effect that a mandatory custodial detention would have on getting accused persons to turn approvers.    

In the years since, this view has been followed consistently by the Delhi and Rajasthan High Courts. It has also been adopted by the High Courts of KeralaMadrasBombay, and Chhattisgarh (in various cases, of which only one is referred to here). Importantly, more than one High Court has doubted the validity of Section 306(4)(b) shorn of the necessary judicial discretion that has been read in. The Supreme Court, till now, has not issued any opinion engaging with the issue. 

There has also been a degree of consistency in the circumstances in which these courts have been compelled to order release of approvers. For instance, in almost all of the cases, the approver’s testimony had been recorded in court. Another circumstance which compelled courts to order release was delay in the case, departing slightly from the view in A.L. Mehra by granting relief even if trials had begun but looked unlikely to finish anytime soon (especially if some of the accused persons were absconding).

Solution? A Necessary Amendment 

It is arguable that the status quo does enough to remedy any injustice resulting from Section 306(4)(b); in line with how the Law Commission viewed the situation in 1969. I would argue that it is not. Rather, what we have is a near-perfect case where the law ought to be amended. Why is the current position inadequate to remedy injustice? Primarily, because the High Court as a site of litigation is necessarily exclusive, to the detriment of many potential litigants in the criminal process. Funnily enough, the Law Commission noticed this in the same 41st Report in another context — anticipatory bail — which is why it granted Sessions Courts concurrent jurisdiction with High Courts.      

A wholesome change would go ahead and reconsider the distinction between persons already on bail and those in custody at the time of being granted a pardon and confer powers on courts to detain any approver in custody where it is in the interests of justice. This would do away with a classification that many High Courts have found troubling, viewing it as somewhat contrary to the overall object of protecting approvers for the trial. It is understandable that a legislature which is concerned with more serious matters such as curbing voter fraud through privacy infringing measures may not be able to do this. Which is why I would suggest a more simple amendment to concretise what multiple High Courts have desired, while expanding the reach of remedies for those less privileged and unable to access these High Courts. Bring us back to how Section 209 of the Code dealt with the issue in 1861: Remove the “shall”, replace it with a “may”, to once again allow a Sessions Court to release witnesses who have no business being behind bars. 

[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’.]


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