[Cites 16, Cited by 0]

Karnataka High Court

Central Bureau Of Investigation vs P Pothurajan on 16 February, 2026

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CRL.RP No. 1525 of 2022

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16TH DAY OF FEBRUARY, 2026

BEFORE

THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

CRL.RP NO.1525 OF 2022

BETWEEN:

CENTRAL BUREAU OF INVESTIGATION
(ANTI CORRUPTION BRANCH),
NO.36, BELLARY ROAD,
GANGANAGAR,
BENGALURU-560032.
...PETITIONER
(BY SRI P PRASANNA KUMAR, SPL.PP WITH
SRI RAHUL KRISHNA REDDY P, ADVOCATE)

Digitally AND:
signed by
PRAMILA G V
Location: P POTHURAJAN,
HIGH COURT S/O V PONNUSWAMY,
OF AGED ABOUT 39 YEARS,
KARNATAKA
C/O SHIVARAJ,
R/A NO.15, PWD MAIN ROAD,
AKASHNAGAR, NARAYANAPURA,
BENGALURU-560016.
...RESPONDENT
(BY SRI GANESH KUMAR R, ADVOCATE)

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE ORDER DATED 07.11.2022 PASSED BY THE LEARNED
XXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
PRINCIPAL SPECIAL JUDGE FOR CBI CASES, BENGALURU
(CCH-4) IN CRL.MISC.NO.7811/2022 ARISING OUT OF
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CRL.RP No. 1525 of 2022

SPL.C.C.NO.17/2017 AND CONSEQUENTLY ALLOW THE
REVISION PETITION FILED BY THE PROSECUTION U/S.308
OF CODE AND.

THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09TH FEBRUARY, 2026 AND
COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

CAV ORDER
In the present Criminal Revision Petition, the following

questions arise for consideration:

(i) Whether the certificate issued by the Public
Prosecutor under Section 308(1) of the Code of
Criminal Procedure, would result in automatic
cancellation/forfeiture of the pardon tendered
under Section 306 of the Code?

(ii) Whether examination of the accused turned
approver under Section 306(4) of the Code of
Criminal Procedure is mandatory in case the pardon
is tendered by the Special Court which is competent
to take cognizance of the offence and to try the
accused?

(iii) Whether the respondent has violated the terms
and conditions of the pardon?

2. Criminal Revision Petition is filed assailing the order

dated 07.11.2022, passed in Crl.Misc.No.7811/2022, by which
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CRL.RP No. 1525 of 2022

the petitioner's application under Section 308 of the Code of

Criminal Procedure ('Code') to prosecute the respondent of this

petition (the accused No. 4 in RC 07(A)/2016) was rejected.

3. The application under Section 308 of the Code, filed

in Spl.C.C.No.17/2017 on the file of the XXI Sessions Judge &

Principal Special Judge for CBI Cases, Bengaluru, is numbered

as Crl.Misc.No.7811/2022.

4. The petitioner, the Central Bureau of Investigation,

filed the aforementioned application to prosecute PW-1

(accused No.4 turned approver) for not having complied with

the terms and conditions of the order granting pardon.

5. The XVII Additional Chief Metropolitan Magistrate,

Bengaluru, on 23.08.2016, had recorded the confession

statements of accused No.4 under Section 164(1) of the Code.

The respondent, during the course of the investigation,

volunteered to be approver and sought pardon. On an

application under Section 306 of the Code, the Special Judge

granted pardon to the said accused, subject to the condition

that accused No.4 should make a full and true disclosure and

depose the truth before the Court.
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CRL.RP No. 1525 of 2022

6. The respondent (who was by then cited as CW-9 in

the charge sheet) was examined as PW-1 by the prosecution.

Witness was cross-examined by the remaining accused.

7. When the case was posted for final arguments, the

Public Prosecutor filed an application under Section 308(1) of

the Code to prosecute the respondent, alleging that the

approver has given false evidence and violated the terms of the

pardon. The respondent contested the application.

8. The Trial Court framed two points for consideration

as follows:

(i) Whether the prosecution establishes that the
respondent has not complied with the terms of the
pardon?
(ii) What order?

9. The Trial Court, after hearing both sides, dismissed

the petition.

10. Initially, the application under Section 308(1) of the

Code was not accompanied by a Public Prosecutor's certificate,

and the respondent opposed the application on that count.

Subsequently, the Public Prosecutor's certificate was filed, and

the Court proceeded to hear the matter, holding that the defect
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CRL.RP No. 1525 of 2022

was cured. The Trial Court was right in holding that such an

omission is curable.

11. The Special Court considered the statement of PW-1

and concluded that the respondent had not violated the terms

of the pardon. Hence, the prosecution is before this Court

assailing the said order.

12. Before going into the merits of the petition, it is

necessary to record certain facts:

(a) The prosecution had registered an FIR in

R.C.No.07(A)/2016 on 17.03.2016 against Shri

Visweswara Bhat and Shri V.Prem Kumar and Sri. K.R.

Somasunder, the Superintendents of Customs at the

Import Section of Customs at Bengaluru International

Airport. The case was registered for offences under

Sections 7, 8, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 (PC Act) and ection

120B of IPC.

(b) The prosecution alleged that accused No.1 to 3, the

Customs officials, were demanding and accepting illegal

gratification from Clearing House Agents, and accused
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CRL.RP No. 1525 of 2022

No.4, collected the bribe from other agents and paid the

same to accused No.1 to 3 for clearing files for the

release of imported goods.

respondent) under Section 164(1) of the Code before

the 17th Additional Chief Metropolitan Magistrate

admitted the accusations.

(d) Accused No. 4 filed application under Section 306(1) of

the Code to become approver and sought pardon. The

CBI filed a memo supporting the said application to treat

accused No. 4 as approver.

(e) Acting on the application under Section 306(1) of the

Code, the Special Judge granted the pardon on the

conditions which are extracted below:

"He must make full and true disclosure of the whole
of the circumstances within his knowledge relative to
the offence and to every other person concerned in
the commission of the offences whether as principal
or abettor.

Accused no.4 is also cautioned that if it is disclosed
that he has willfully concealed anything essential or
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CRL.RP No. 1525 of 2022

giving false evidence and not complied with the
condition on which the tender of pardon was made
he would be tried for the offences in respect of which
the pardon was tendered and accepted by him or for
any other offences of which he appears to have been
guilty in connection with the same matter and also
for the offence of giving false evidence. xxxxxxxxxx."

(f) Later in the trial, accused No. 4 was examined as PW-1.

In cross-examination, according to the prosecution, the

said approver supported the case of the defence.

(g) In this background, the application under Section 308(1)

of the Code was filed to revoke the pardon and the same

was dismissed. The said order of dismissal is questioned

in this petition.

13. Learned counsel appearing for the petitioner raised

the following contentions:

(i) While tendering pardon, conditions were imposed on the

respondent that he should make full and true disclosure

of the whole circumstances within his knowledge relative

to the offence and the persons concerning the offence,

whether as principal or abettor. However, the evidence
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CRL.RP No. 1525 of 2022

of PW-1 demonstrates that the respondent has not

complied with the terms and conditions of the pardon;

(ii) The respondent supported the prosecution's version in his

statements under Section 164(1) of the Code. However,

in cross-examination, accused supported the case of the

defence, and thereby violated the terms and conditions;

(iii) The statements in the cross-examination of the

respondent are contrary to the statement made under

Section 164(1) of the Code; as such, a case is made out

for revoking pardon under Section 308 of the Code;

(iv) The Trial Court, on a certificate issued by the Public

Prosecutor under Section 308(1) of the Code, should

have proceeded to hold the trial against the approver, as

the revocation of pardon is automatic upon the issuance

of such a certificate by the Public Prosecutor.

14. Learned counsel appearing for the respondent

raised the following contentions:

(i) The revocation of pardon is not automatic upon a

certificate being filed by the Public Prosecutor. The Court

has to hear the approver before passing orders on a

certificate for revocation of pardon;
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CRL.RP No. 1525 of 2022

(ii) In both the Section 164(1) statement, examination-in-

chief, and cross-examination, the respondent narrated

the truth as known to him; merely because the

statements in cross-examination do not support the

prosecution's case, that does not mean the approver

violated the terms of the pardon;

(iii) In the examination-in-chief, the respondent answered

specific questions where there was no scope for further

elaboration, and similarly in cross-examination. In such

a situation, if the answers do not tally for any reason,

that by itself is not a ground to say pardon conditions

were violated;

(iv) It is quite possible that the prosecution's theory itself is

false and what is stated in the cross-examination is true;

therefore, the prosecution cannot file an application

under Section 308 merely because the evidence is not to

their liking;

(v) If any explanation was needed after cross-examination,

the petitioner could have re-examined the witness, but

the prosecution chose not to do so.
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CRL.RP No. 1525 of 2022

15. Learned counsel for the petitioner has relied on the

judgment of State of Maharashtra vs. Abu Salem Abdul

Kayyum Ansari and Others1 in support of his contentions.

16. Learned counsel for the respondent has relied on

the following judgments in support of the contention:

(i) Emperor v. Kothia Navalya Bhil2
(ii) Dip Chand v. Emperor3
(iii) Faguna Kanta Nath v. State of Assam4
(iv) Ex.Sepoy Hardhan Chakrabarty v. Union of
India (UOI) and Anr.5
(v) Madan Raj Bhandari v. State of Rajasthan6
(vi) B.H. Narashima Rao v. Government of
Andhra Pradesh7
(vii) Rammi Alias Rameshwar vs. State of
8
Madhya Pradesh
(viii) Directorate of Enforcement vs. Rajiv
Saxena9

17. Section 308(1) of the Code reads as under:

"Where, in regard to a person who has accepted a
tender of pardon made under section 306 or section

1
(2010) 10 SCC 179
2
1906 SCC Online Bom 50
3
1934 SCC Online Lah 264
4
1959 SCC Online SC 41
5
AIR 1990 SC 1210
6
1970 SCR(1) 688
7
1999 Supp(4) SC 704
8
AIR 1999 SC 3544
9
2020 SCC OnLine Del 719
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CRL.RP No. 1525 of 2022

307, the Public Prosecutor certifies that in his opinion
such person has, either by wilfully concealing anything
essential or by giving false evidence, not complied with
the condition on which the tender was made, such
person may be tried for the offence in respect of which
the pardon was so tendered or for any other offence of
which he appears to have been guilty in connection with
the same matter, and also for the offence of giving false
evidence:

Provided that such person shall not be tried jointly with
any of the other accused:

Provided further that such person shall not be tried for
the offence of giving false evidence except with the
sanction of the High Court, and nothing contained in
section 195 or section 340 shall apply to that offence."

(Emphasis supplied)

18. Section 308(1), which provides for the trial of an

approver who violates the terms of the pardon, uses the

expression "...may be tried for the offence...". In other

words, the Court has the discretion as to whether the approver

has to be tried or not. Of course, the discretion is not

unfettered or absolute. The Court exercising the discretion has

to apply its mind to be prima facie satisfied as to whether case

is made out for revocation.

19. The reasons are as follows:
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CRL.RP No. 1525 of 2022

(i) The process of tendering and accepting pardon is through

a judicial order, which confers a certain concession/relief

to the approver. Once the pardon is accepted, he is no

longer the accused and is not liable for punishment for

the alleged offence. Thus, the pardon granted which is a

judicial order cannot be revoked simply by the issuance

of a certificate by the Public Prosecutor. While the Public

Prosecutor is enabled to issue a certificate, the pardon

cannot be revoked unless the Court forms an opinion on

prima facie consideration that there is a violation of

conditions.

(ii) If the Court were to take the view that a mere certificate

is sufficient to revoke pardon, it would have the effect of

unilaterally setting aside a judicial order. While the

accused is entitled to establish later that he did not

violate the terms, the contention that pardon is revoked

solely on a certificate does not align with the scheme of

Sections 306 to 308 of the Code, which aims to secure

the best evidence. Unilateral revocation without hearing

the approver may dissuade others from coming forward,

to be approvers defeating the purpose of Section 306.
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CRL.RP No. 1525 of 2022

(iii) If Parliament intended revocation to be mandatory on

the mere issuance of a certificate without a hearing, it

would likely have used the expression "...shall be

tried..." instead of "...may be tried..." in Section 308.

20. Thus, this Court is of the view that for the Public

Prosecutor to urge for the forfeiture of pardon and a

consequent trial, must point out that a prima facie case; at that

stage, the approver is also required to be heard. However, the

scope of the inquiry is limited to:

(i) Whether the certificate prima facie points out
violations of the conditions of the tender of pardon?

(ii) Whether the evidence recorded under Sections
164(1) or 306(4) of the Code, or during trial,
"prima facie appears to be" lacking a true and full
disclosure of the circumstances relative to the
offence, principal or abettor, within the person's
knowledge?

21. The Delhi High Court in Directorate of

Enforcement vs. Rajiv Saxena10 held that an application

under Section 308 with a certificate is not tenable if the

evidence of the approver has not yet been recorded under

Section 306(4). The High Court upheld the Special Judge's
10
2020 SCC OnLine Del 719
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CRL.RP No. 1525 of 2022

power to judicially review the certificate and reject the prayer

for revocation and a trial.

22. Learned counsel for the petitioner urged that the

Apex Court in State of Maharashtra vs. Abu Salem (supra)

held that pardon stands forfeited on a certificate issued by the

Public Prosecutor. The Court has considered said judgment;

however, in that case, the Court was not determining if

revocation was automatic or if the approver must be heard

first. It held that if the approver suppresses material facts and

a certificate is issued, the pardon is lifted, but the specific

procedural requirement of a hearing was not the primary

question decided.

On the procedure for hearing an application/ certificate

under Section 308 of the Code:

23. The Court does not entirely agree with the

procedure adopted by the Trial Court in converting the

application under Section 308 into a miscellaneous petition.

While forfeiture is not automatic, the elaborate procedure

adopted before this Court was uncalled for.
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CRL.RP No. 1525 of 2022

24. The Trial Court registered the application as a

separate miscellaneous petition, which is not a legal

requirement. Although a person whose pardon is recalled must

be tried separately for the main offence, the application/

certificate under Section 308 itself does not require a separate

trial.

25. On an application under Section 308, the Court is

only required to consider the prima facie materials after hearing

both sides. If the certificate points out a violation, and prima

facie it is established then pardon can be revoked and Section

308 procedures follow. If application is rejected, the accomplice

remains a prosecution witness.

Whether the Special Judge is required to examine the

accused/approver when the accused accepts the tender:

26. In this case, evidence was recorded by the Chief

Judicial Magistrate under Section 164(1). It is settled law that if

a Magistrate tenders pardon, the examination under Section

306(4) is mandatory before committing the matter.

27. In the instant case, the evidence was recorded on

23.08.2016 under Section 164(1), but that Magistrate did not
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CRL.RP No. 1525 of 2022

tender the pardon. Because the case is registered under the

Prevention of Corruption Act ('PC Act'), the application under

Section 306 was filed before the Special Court. Under Section

5(2) of the PC Act and Section 307 of the Code, the Special

Judge has the power to tender pardon on the same conditions.

28. Although respondents argue the Court did not

examine the accused under Section 306(4), the Apex Court in

Deivendran vs. State of Tamil Nadu11 held such

examination is not required if the Court trying the offence

tenders pardon after committal. In the instant case, the Court

taking cognizance is also the Court empowered to try the case.

Thus, Section 307 of the code would apply. The expression

"same conditions" in Section 307 refers to Section 306(1) and,

not the procedures in the subsequent sub-sections. Thus, the

Special Judge was not required to examine the approvers under

Section 306(1) of the Code.

11
AIR 1998 SC 2821
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CRL.RP No. 1525 of 2022

Whether the evidence on record calls for revocation of

pardon and warrants a trial against the approvers.

29. The Court has examined the case with reference to

the statement of approver recorded under Section 164(1), the

examination-in-chief, and the cross-examination.

30. In the application under Section 308 (Paragraph No.

6), the following statement of Pothurajan P.(respondent) are

noted:

"i. Now I see Ex.P-8, I do not know the contents of
Ex.P-8 as I do not know to read Kannada. The said
Ex.P-8 was his statement under Section 164 Cr.P.C.

ii. It is true to suggest that as I could not tolerate the
harassment of CBI I request them to get me out of
this case.

iii. It is true to suggest that in order to get rid of this
case I have acted as per the instruction of CBI
officers.

iv. It is true to suggest that the said CBI officers have
told me to give same statements before the
Magistrate which I have already given to the CBI
officers.

v. It is true to suggest that Ex.P-12 to Ex.P-16, Ex.P-18
and Ex.P-21 now shown to me does not bear my
signature. It is pertinent to note that earlier during
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CRL.RP No. 1525 of 2022

his examination in chief he has stated as below
regarding the said exhibits."

31. Referring to the aforementioned statements, it is

urged that the conditions of the pardon have been violated.

32. Respondent, in his statement under Section 164(1),

stated that after collecting the amount (from Custom House

Agents), he used to give it to Officers of the Customs

Department, which is extracted as follows:

¥Àæ±Éß 2: xxx

GvÀÛgÀ: xxx
¨ÉAUÀ¼ÀÆj£À CAvÀgÀ gÁ¶ÖçÃAiÀÄ «ªÀiÁ£À ¤¯ÁÝtzÀ°è ¸ÀÄªÀiÁgÀÄ
150 d£À ¹JZïJ UÀ¼ÄÀ EzÀÄÝ CªÀgÄÀ UÀ¼ÄÀ ¥ÉÊQ ¸ÀÄªÀiÁgÀÄ
d£ÀjAzÀ ¥Àæw¢ªÀ¸À ºÀt PÀ¯ÉPïÖ ªÀiÁr ¸ÀAeÉ PÉÆqÀÄªÀAvÉ ¸ÀzÀj
ªÀÄÆgÀÄ d£À £À£ÀUÉ w½¹zÀÝgÄÀ . CzÀgÀAvÉ £Á£ÀÄ ªÁgÀzÀ°è
ªÀÄÆgÀÄ ¢ªÀ¸À ¸ÀÄªÀiÁgÀÄ 80 ¹JZïJUÀ½AzÀ ¥Àæw ©°èUÉ gÀÆ.50
gÀAvÉ ºÀt PÀ¯ÉPïÖ ªÀiÁqÀÄwÛzÝÉ £ÄÀ . ¥Àæw ¨Áj gÀÆ.10 ¸Á«gÀ¢AzÀ
13 ¸Á«gÀ ºÀt PÀ¯ÉPïÖ DUÀÄwÛzÄÀ Ý £Á£ÀÄ ¸ÀAeÉ ªÀÄ£ÉUÉ
ºÉÆÃUÀ¨ÉÃPÁzÀgÉ D ºÀtªÀ£ÄÀ ß ¸ÀzÀj ªÀÄÆgÀÄ d£ÀgÀ ¥ÉÊQ AiÀiÁgÀÄ
¹UÀÄvÁÛgÉÆÃ CªÀjUÉ PÉÆlÄÖ ºÉÆÃUÀÄwÛzÝÀ £ÄÀ ."

33. In paragraphs No.5 and 6 of the examination-in-

chief, PW-1 (respondent) has stated as under:

"5. I was asked by the Superintendent of Excise who so
ever in charge on that day to collect Rs.50 from each of
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CRL.RP No. 1525 of 2022

the CHAs on each bill submitted by the said CHAs. At the
end of day, I used to make payment of the said
collected amount to said Superintendent of Excise
who so ever in charge on that day. I used to collect
said amounts on two or three occasions in a week.

6. I used to collect the said Rs.50 from each CHA, it may
be from about 50 CHAs. In this regard I used to prepare
slip for having collected Rs.50 from the CHAs. Some
times, I used to hand over the said chit to Superintendent
of Customs and some times I used to retain the said chit
with me".

(Emphasis supplied)

34. In the cross-examination, the witness has stated as

extracted above in paragraph No.31.

35. It is noticed that referring to Ex.P8, the respondent

states that he does not know the contents of Ex.P8. It is a

statement under Section 164(1) of the Code. The statement

that he does not know the contents of Ex. P8 cannot be termed

as violation of the terms and conditions of the tender. It may

amount to a false evidence if it is established that he

understood contents of Ex.P8 when it was recorded.

36. It is to be noticed that when the statement under

Section 164(1) of the Code was recorded, the application for

tendering the pardon had not yet been filed. The Magistrate did
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CRL.RP No. 1525 of 2022

not record the statement under Section 164(1) of the Code

with a view to tendering a pardon. Admittedly, no conditions

were imposed while recording the statement under Section

164(1) of the Code.

37. Hence, if the statement under Section 164(1)

(which was recorded before the tendering of the pardon) does

not disclose all facts concerning the offence or the principal or

abettor, it does not amount to a violation of the terms and

conditions of the pardon, as those conditions were imposed

subsequent to the statement under Section 164(1) of the Code.

38. It is to be noticed that pardon was tendered by the

Special Judge and not by the Magistrate who recorded the

statement under Section 164(1). Moreover, under Section

306(1) of the Code, the accused-turned-approver is required to

disclose facts relative to the commission of the offence or facts

concerning the principal or abettor. The prosecution is

complaining about a subsequent event, viz., the alleged false

statement regarding the pressure or inducement by the CBI

officials to confess to the commission of the offence.
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CRL.RP No. 1525 of 2022

39. In the cross-examination, it was disclosed for the

first time that PW.1 gave the statement under Section 164(1)

of the Code at the instance of the CBI officials.

40. The question is whether the said statement made in

the cross-examination can be termed as a violation of the

terms and conditions of the pardon.

41. The Court is of the view that the said statement in

the cross-examination, that the CBI officials pressured or

induced accused No.4 to make a confessional statement under

Section 164(1) of the Code, even if true, cannot be termed as

violation of the terms of the pardon. The reason is that if it is

the truth, then the accused/approvers have narrated the truth

and cannot be penalized for it.

42. If such inducement or pressure was not there while

recording statement under Section 164(1) of the Code, then

the statement in the cross-examination may amount to false

evidence. If the approver is to be tried for giving false

evidence, then the prosecution must seek the leave of the High

Court as provided under the proviso to Section 308(1) of the

Code. Admittedly, the petitioner has not sought such leave.
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CRL.RP No. 1525 of 2022

43. This being the position, in the facts and

circumstances of this case, merely because the approver did

not disclose about the alleged inducement or pressure by the

officials to give a statement under Section 164(1) of the Code

does not amount to violation of the terms of the pardon.

44. Now the question is whether the statement in the

cross-examination at paragraph No.41 extracted below

amounts to false evidence and violates and the terms and

conditions of the pardon

"41. XXX

It is true to suggest that I am not having any

financial dealings with any of the customs

officers."

XXX.

45. As rightly argued by the learned counsel for the

accused/respondent that the statement in the cross-

examination that respondent did not have any financial

transaction with accused may or may not amount to a false

evidence. Merely because it allegedly contradicts with what is

stated in the chief-examination, it does not necessarily mean

that what is stated in the cross-examination is false. It is quite
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CRL.RP No. 1525 of 2022

possible that what is stated in the examination in chief is

incorrect and what is stated in the cross-examination is the

truth.

46. Facts revealed in the cross-examination, if not

stated in the examination in chief, ipso facto may not amount

to violation of the terms of the pardon. The cross-examination

is not just confined to the facts which are testified in the

examination-in-chief but also, extend to the facts which are

relevant for adjudication. It is apparent from the provision

which reads as under:

Section 138 of The Indian Evidence Act, 1872 is extracted

as under:

138. Order of examinations.- Witnesses shall be
first examined-in-chief, then (if the adverse party
so desires) cross-examined, then (if the party
calling him so desires) re-examined.

The examination and cross-examination must
relate to relevant facts, but the cross-examination
need not be confined to the facts to which the
witness testified on his examination-in-chief.

Direction of re-examination.-The
re-examination shall be directed to the explanation
of matters referred to in cross-examination; and, if
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CRL.RP No. 1525 of 2022

new matter is, by permission of the Court,
introduced in
re-examination, the adverse party may further
cross-examine upon that matter."

(Emphasis supplied)

47. In view of the wide scope of cross-examination,

every new statement made in the cross-examination by the

approver cannot be termed as violation of the terms and

conditions of the pardon. Whether, such new statements made

in the cross-examination amount to violation of the terms of

the pardon depends on the facts of each case.

48. As rightly urged by the learned counsel for the

respondent, on the new facts which are revealed in the cross-

examination, the prosecution has not sought re-examination.

The learned counsel for the respondent has placed reliance on

the judgment of the Apex Court in Rammi Alias Rameshwar

(supra), where it is held that re-examination under Section 138

of the Indian Evidence Act, 1872 is not confined to clarification

of ambiguities in the cross examination. The observations in

paragraphs No.16 and 17 of the said judgment are relevant and

extracted hereunder:
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CRL.RP No. 1525 of 2022

16. The very purpose of re-examination is to
explain matters which have been brought down in
cross-examination. Section 138 of the Evidence Act
outlines the amplitude of re-examination. It reads
thus:

"138. * * *

Direction of re-examination.- The re- examination
shall be directed to the explanation of matters
referred to in cross-examination; and if new
matter is, by permission of the Court, introduced in
re-examination, the adverse party may further
cross-examine upon that matter."

17. There is an erroneous impression that
re-examination should be confined to clarification
of ambiguities which have been brought down in
cross-examination. No doubt, ambiguities can be
resolved through re-examination. But that is not
the only function of the re-examiner. If the party
who called the witness feels that explanation is
required for any matter referred to in cross-
examination he has the liberty to put any question
in re-examination to get the explanation. The
Public Prosecutor should formulate his questions
for that purpose. Explanation may be required
either when ambiguity remains regarding any
answer elicited during cross-examination or even
otherwise. If the Public Prosecutor feels that
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certain answers require more elucidation from the
witness he has the freedom and the right to put
such questions as he deems necessary for that
purpose, subject of course to the control of the
court in accordance with the other provisions. But
the court cannot direct him to confine his questions
to ambiguities alone which arose in cross-
examination."

(Emphasis supplied)

49. In the instant case, it is urged on behalf of the

respondent that the answer in the cross-examination by the

respondent that he has no financial dealings with other accused

may not be with reference to what he has allegedly stated in

the examination in chief. It is submitted that said statement

might be pertaining to any other transaction and for this

purpose there should have been a re-examination, and without

such re-examination it is not possible to revoke the pardon.

50. The Court is unable to accept the said view. The

reason is, at this stage, the Court need to ascertain with

certainty as to whether the approver has made out a false

statement or not. The Court is only required to consider the

prima facie aspect of the matter. If the Court on overall

consideration of the evidence/statement on record prima facie
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finds that the statement is false, or the approver has violated

the terms of the pardon by concealing anything essential, then

the procedure contemplated under Section 308 must follow.

51. As already noticed, the terms of the pardon were

not negotiated and accepted when said statement was made

before the Magistrate. Hence, the contention that alleged false

statement relating to alleged pressure or inducement by the

police while recording Section 164 (1) statement does violate

the conditions of the pardon cannot be accepted.

52. And as already discussed, the statement relating to

pressure and inducement by the CBI officials if is a false

statement in the cross examination, then, to prosecute for such

false evidence the prosecuting agency has to seek leave of the

High Court which admittedly, is not sought.

53. If the CBI contends that the statement of the

respondent that he is not having any financial dealings is not a

fair or full disclosure, then if statement in the chief examination

that he used to pay the money to the accused is accepted as

correct, then statement that he has no financial dealings may

amount to a false evidence, may amount concealment of

anything essential, and may also amount to violation of the
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terms of the pardon. In such situation the prosecution is

entitled to file an application for revocation of pardon.

54. The Trial judge has not noticed the said statement

in paragraph No.41 of the cross-examination which prima facie

appeared like concealment of essential fact concerning offence.

In addition it also prima facie appears like a false evidence. It

appears that it was a case where the Trial Court should have

tried the approver for the offence for which the accused was

tendered pardon. At that stage the Court is only required to

consider whether prima facie case made out for revocation of

pardon.

55. It is brought to the notice of the Court that accused

No.1 to 3 were acquitted of charges and said order is not

challenged. Considering the subsequent development of

acquittal of main accused, facts of the case, and charges

against all the accused, there is no justification to try the

respondent for the main offence for which the pardon was

tendered.

56. However, if the prosecution seeks to try the

approver for false evidence, the CBI has to move the High

Court as required under proviso to Section 308 of the Code.
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57. Hence the following:

ORDER

(i) The Criminal Revision Petition is dismissed.

(ii) Since, the petitioner has not sought the leave of the Court to prosecute the approver for giving false evidence; the liberty is reserved to the prosecution to file such petition as advised in law.

(iii) Observations made in this order relating false evidence are confined to only this Order and shall not be binding on the parties or the Court in a proceeding pursuant to an application if any filed seeking leave of the High Court to prosecute the approver for giving false evidence.

Sd/-

(ANANT RAMANATH HEGDE) JUDGE

CHS/BRN