Jammu & Kashmir High Court
Ajaz Ahmed vs Ut Of J&K Through Sho Police on 23 March, 2026
Serial No. 1
Suppl. Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)
CRM(M) 410/2025 CrlM 814/2025
Pronounced on 23/03/2026.
Uploaded on 23/03.2026.
1. Ajaz Ahmed
S/o. Abdul Rashid
R/o. Village Sailan Tehsil Surankote,
District Poonch.
...Petitioner(s)/Appellant(s).
Through: Mr. Vikram Sharma, Sr. Advocate with
Mr. Sachin Dev Singh, Advocate.
Vs.
1. UT of J&K through SHO Police
Station Poonch
2. Superintendent, District Jail, Poonch
...Respondent(s).
Through: Ms. Monika Kohli, Sr. AAG
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
JUDGMENT
1. Impugned in the instant petition having been filed under the provisions
of Section 528 of Bharatiya Nagarika Suraksha Sanhita, 2023 (hereinafter
referred to as the ‘BNSS for short), is the order dated 05.04.2025 passed by the
Court of Learned Special Judge Designated under National Investigation
Agency Act (Additional Sessions Judge), Poonch ( hereinafter referred to as the
‘Trial Court’ for short), on Bail Petition No. 207/Bail while rejecting the prayer
of the petitioner for his enlargement on bail in case FIR No. 358/2023 of Police
Station Surankote District Poonch under sections 120-B, 121, 122, 201, 201
IPC, 7/25 Arms Act, 13, 17, 18, 18-B, 20, 21, 23, 38, 39 and 40 of Unlawful
Activities Prevention Act (ULAP Act).
2. The brief facts of the case relevant for disposal of the instant petition are
that Case FIR No. 358 of 2023 came to be registered with Police Station,
Surankote pursuant to receipt of a written report/docket dated 14.11.2023
CRM(M) No. 410/2025 Page No. 1
issued by Shri. Itifaq Ahmed, ASI No. ExJ007148 (PW 46) then posted with
SOG Surankote Camp Buffliaz J&K, through the hands of Shri. Zameer
Ahmed, Head Constable No. 573/P, also posted with the said police component
as on date, which revealed that an information through reliable sources was
received on that day by police component Surankote regarding movement and
activities of terrorists, whereupon the originator accompanied with Deputy
Superintendent of Police affiliated to the component as also other police
personnel left for the Naka Checking in the government vehicles and started
performing their duty at Buffliaz Chowk; that in the process of performance of
their duty, they, at about 7 PM in the evening, stopped for checking one
vehicle-Fortuner bearing No. DL8CZ 2565 of white color which was coming
from DKG side on its way towards Kashmir via Mughal Road; that three
persons, that is, one driver and two other persons, one sitting on the left side of
the driver at the front and the other on the middle seat, were found boarded in
the vehicle who respectively disclosed their names as Aijaz Ahmed
(Petitioner), Gulshan Ahmed, son of Mohammad Sharif Sheikh, resident of
Bonikhet, Tehsil Surankote, and Farooq Feroz, son of Mohammad Rafiq Dar,
resident of Rajdhani, Thanamandi, District Rajouri; that upon their search, arms
and ammunition of the description (i) one pistol, two magazines, and 9mm live
cartridges (22 numbers) and one mobile phone (ii) one pistol, two magazines,
9mm live cartridges (22 numbers), and cash of Rs 2.5 lakh and two mobile
phones and (iii) a mobile phone came to be recovered from the apprehended
persons respectively; that besides four posters of banned outfit Hizbul
Mujahideen also came to be recovered from the sun-shade of the vehicle; that
upon the failure of the apprehended persons to justify the possession of the
prohibited arms and ammunition, it was believed that all the three persons, on
the instructions of the intelligence agency (ISI) of Pakistan and terrorist
organization Hizbul Mujahideen, are indulging in illegal activities with a view
to create disturbances by killings and massacre of general public in the Jammu
and Kashmir with a view to threaten the unity and integrity of India; that
subsequent to the registration of the FIR and during investigation, the petitioner
Aijaz Ahmad Sheikh, Gulshan Ahmad, Mehraj Ahmad and Abid Ramzan S/O.
Mohammad Ramzan Sheikh R/O. Chotipora Shopian were found to be
CRM(M) No. 410/2025 Page No. 2
involved in the case FIR when, as against the accused Farooq Feroz, S/O.
Mohammad Rafiq R/O. Rajdhani Thanamandi, District Rajouri, no
incriminating evidence could be established who was accordingly given the
benefit of Section 169 of the Code of Criminal Procedure, 1973 (now repealed
and hereinafter referred to as the ‘Code’ for short); that the accused Abid
Ramzan Sheikh was not found despite extensive search and in relation to him it
was learnt during investigation that he has illegally crossed to the Line of
Control and gone to the area of POK. That the present petitioner Aijaz Ahmad
after the presentation of the final report/challan in the case FIR before the
competent Trial Court expressed his willingness to give a true account of the
facts and circumstances of the case, provided he is being tendered pardon as per
the provisions of Section 306 of the Code. He was accordingly, during the trial
of the case, brought before the concerned Chief Judicial Magistrate on
24.08.2024 for tender of pardon and getting his statement recorded in terms of
the provisions of Section 306 of the Code corresponding to Section 343 of the
Bharatiya Nagarika Suraksha Sanhita, 2023 (hereinafter referred to as the
‘BNSS’ for short).
3. The learned Chief Judicial Magistrate accordingly on 24.08.2024
tendered pardon to the petitioner and proceeded to record his statement as an
approver. Subsequently, the statement of the petitioner gets also recorded at the
trial as an approver/accomplice on 8.3.2025 at the instance of the prosecution.
The petitioner subsequently applies to the learned trial court for grant of bail in
his favor which is rejected through the order impugned in this petition.
4. The petitioner has assailed the impugned order on the grounds, inter alia,
that he is a domicile of UT of Jammu and Kashmir and a citizen of India thus
entitled to seek the enforcement of his constitutional and other legal rights.
That he came to be implicated in the case FIR number 358/2023 of Police
Station Surankote, Poonch along with two other accused namely Gulshan
Ahmed and Farooq Feroz when he is totally innocent. That he is a Government
Teacher who was lastly posted at government primary school Handal Sailan
Zone Buffliaz, Poonch and therefore commanded respect in the society. That
his fault is only that he, in good faith, stood as a guarantor to the co-accused
Gulshan Ahmed in respect of loans secured by him from the Jammu and
CRM(M) No. 410/2025 Page No. 3
Kashmir bank as also from the SFC Rajouri. That co-accused Gulshan Ahmed
defaulted in paying back the loan which led to the deduction of monthly
instalments from his salary account. That on the fateful day of occurrence that
is 14.11.2023, he was told on phone by the accused Gulshan Ahmed to
accompany him so that he will collect money for being deposited in the bank
account to stop the deduction of instalments from his salary account. That he
did not share any criminal conspiracy as alleged with the co-accused Gulshan
Ahmed or any other accused and left with the accused Gulshan Ahmed only
with the hope that he will collect money from somewhere so that the same
amount is being credited to the loan account to facilitate the stopping of
deductions from his (petitioner’s) salary account. That whatever happened on
the day of occurrence, he was not knowing anything about the same and got
trapped despite being totally innocent. That even during investigation of the
case he revealed to the Investigating Officer the true account on his part
justifying his innocence but to his bad luck he was not believed. That even the
co-accused Gulshan Ahmed during investigation of the case disclosed his
innocence. That after the presentation of the challan in the case, he thought it
proper as an innocent person to apply for pardon and in terms of the provisions
of section 306 of the Code and accordingly moved an application to the learned
trial court on 03.06.2024.
That the said application was directed by the learned Trial Court to be
routed through IO/prosecution, which was done and he was accordingly
tendered pardon by the Court of learned Chief Judicial Magistrate vide his
order dated 24.08.2024 and his statement as an approver also came to be
recorded by the said Magistrate with his certificate thereon to the effect that the
petitioner was found to have fully known the consequences of becoming an
approver upon tender of pardon to him in terms of provisions of Section 306 of
the Code.
That thereafter the prosecution filed an application on 05.02.2025 before
the learned Trial Court seeking his physical appearance for getting his
statement recorded at the trial as a prosecution witness in his capacity as the
approver. That he was accordingly examined at the trial on 08.03.2025 by
subjecting him to examination-in-chief as well as cross-examination. That he
CRM(M) No. 410/2025 Page No. 4
gave a true and full account of the statement relative to the incident/offense to
the satisfaction of the prosecution. That he did not contradict his earlier
statement recorded before the learned Chief Judicial Magistrate. That after
fulfilling his obligation as an approver, he moved an application for his release
on bail on 26.11.2024 before the learned Trial Court which was dismissed
through the order impugned. That the learned Trial Court dismissed his bail
application on the sole ground that as per the provisions of Section 306 (4) (b),
a person accepting the tender of pardon under Sub-section 1 “shall, unless he is
already on bail”, be detained in custody until the termination of the trial which
is evident from the paras 6, 7 and 9 of the impugned order.
That the impugned order suffers from patent illegality and incorrectness
as the provisions of Section 306(4)(b) of the Code do not place a blanket ban or
operate as an absolute embargo on the power of the Trial Court to grant bail to
an approver having been tendered pardon, but instead justify the grant of bail to
such person under exceptional circumstances, especially when he has complied
with the terms and conditions of the pardon by making a true and full account
of the facts and circumstances in relation to the incident/crime committed by
him and the co-accused to his knowledge. That it is well-settled that rider
contained under the aforesaid provisions of law is not intended to punish the
approver for having come forward to give evidence in support of the
prosecution, but to protect him from the possible indignation and rage from the
co-accused. That it is no longer res integra that the provisions of Section
306(4)(b) of the Code cannot be read in a manner that would defeat the
provisions of Article 21 of the Constitution of India guaranteeing the
Fundamental Right to Life and Personal Liberty of an individual. That the
learned Trial Court was under an obligation to release him on bail as he had, on
his part, satisfied the object of the pardon having been tendered to him.
That the prosecution has listed 47 witnesses in the challan and it is
understood that the completion of the trial shall take much time. That he cannot
be forced to suffer incarceration when primarily he is innocent and secondly he
has given a true account of the incident as regards the co-accused without any
sort of contradiction. That his detention until termination of the trial is likely to
serve no purpose than the denial of fundamental right of liberty to him. That the
CRM(M) No. 410/2025 Page No. 5
object of the legislature in providing for the provisions occurring in Section
306(4)(b) of the Code is needed to be interpreted and understood in the light of
the foregoing part of the provisions providing that, “unless he is already on
bail”. That it is not the case of the prosecution/respondent before the learned
Trial Court or even before this court that he has not stood by his statement upon
which he was tendered pardon. That he shall abide by any conditions that may
be imposed by this court.
5. The petitioner has accordingly sought for the quashment of the impugned
order dated 05.04.2025 passed by the learned Trial Court while rejecting his
bail application.
6. The respondent UT in its memo of objections has revealed the facts of
the case leading to the occurrence and involvement of the accused persons,
including the petitioner. However, nothing has been pleaded concerning the
issue under adjudication, that is, whether in the facts and circumstances of the
case the petitioner can/cannot be granted bail as an approver having already
been tendered pardon as per the provisions of Section 306 of the Code?
7. I have heard learned counsel for the parties and considered their
submissions.
8. I have perused the record of the instant petition, especially the memo of
petition, the impugned order dated 05.04.2025, the First Information Report,
the final report/challan, the statement dated 24.08.2024 recorded by the learned
Chief Judicial Magistrate, Poonch, statement dated 08.03.2025 of the petitioner
recorded at the trial as a prosecution witness. I have also gone through the
memo of objections.
9. Keeping in view the aforementioned perusal and consideration, this
Court having regard to the facts and circumstances of the case, is of the
considered opinion that the order impugned dated 05.04.2025 of the learned
Trial Court suffers from illegality and defeats the ends of justice.
10. As herein before mentioned, it is the case of the petitioner that he has got
initially trapped in the case when he is innocent and did not commit any
offense, more so as mentioned in the final report/charge sheet. The petitioner in
his earlier statement before the learned Chief Judicial Magistrate, as well as in
his statement recorded at the trial as a prosecution witness, has given a uniform
CRM(M) No. 410/2025 Page No. 6
and uncontradictory account of the circumstances relating to the part played by
him and the accusation of the co-accused. He has deposed in both the
statements that he knows the co-accused facing trial, namely Gulshan Ahmed
and Mehraj Ahmed Sheikh, and has identified them in the court on today also.
That he does not know the co-accused Abid Ramzan, who has been proceeded
in terms of Section 299 of the Code. That he knows the co-accused Gulshan
Ahmed since 2015-16, when he was running a computer shop at Surankote as
he used to go to him in connection with filling up of different employment
forms. That during those days, the co-accused Gulshan obtained loan from the
Jammu and Kashmir Bank and kept him (petitioner) as a guarantor. That in the
year 2018, the said co-accused Gulshan Ahmad again told him that he has to
make extension of his shop, in connection whereof he has approached the SFC
Rajouri for loan to the extent of Rs. 5 lakhs. That he again kept him guarantor
for the said loan. That since his earlier bank loan was running satisfactorily and
he did not receive any information regarding any default in payment of
instalments by the co-accused Gulshan, as such, he felt no hesitation in again
remaining his guarantor for the SFC loan. That in the year 2019, the co-accused
Gulshan Ahmad along with some persons started a Force Trading business,
which was a sort of online business whereby they used to assure the people to
get their amounts doubled within a short period of time. That a huge number of
persons parted money and deposited with the Force Trading business of the co-
accused. That subsequently the main agent of the company, Rizwan Ahmed
Sheikh, absconded after getting huge money in his account. That the depositors
approached the co-accused Gulshan and pressurized him for refunding their
amount, so much so that a case FIR was also registered against him. That the
co-accused Gulshan remained arrested in the said FIR and was granted bail
after a gap of seven to eight months. That during his arrest in the said case, the
Jammu and Kashmir Bank and the SFC started deducting instalments from his
(petitioner’s) salary account. That about more than two lakh of rupees came to
be deducted from his (petitioner’s) salary account on monthly basis during
some months. That thereafter the SFC people told him that if the co-accused
Gulshan Ahmad/borrower will deposit an amount of Rs. 90,000 in his loan
account, they can issue an NOC for stopping deduction from his salary account
CRM(M) No. 410/2025 Page No. 7
by his DDO. That he accordingly told the co-accused Gulshan Ahmad
regarding the matter, who assured him that he will arrange for the said money
so that no deductions are made from his account. That on 14.04.2023 at about
7:30 AM in the morning, the said co-accused Gulshan told him for
accompanying him up to Rajouri as he has to collect money therefrom. That he
in good faith believing that the accused will arrange for money to deposit in the
loan account, left from the home in his vehicle to accompany the said co-
accused Gulshan. That while proceeding towards the destination known to the
co-accused, he asked him to stop somewhere near a temple and some
residential houses telling him that he will come back with money. That he
accordingly came back after 10 minutes and boarded in the vehicle. That after
traveling for about 4 to 5 km, he asked the co-accused Gulshan as to whether
he has got money, whereupon the said co-accused displayed a bag he had kept
within his legs containing two pistols, four magazines, and three lakhs currency
besides some papers. That the co-accused told him forcibly for taking
possession of one pistol and two magazines, saying that the same has been sent
by terrorist Abid Ramzan, resident of Shopian, who is active in the area since
7-8 years. That upon feeling scared, he, under compelling circumstances, took
the said articles as the co-accused also threatened him of danger to his life and
family. That while returning and upon reaching Bharot, the co-accused Gulshan
told him for stopping. That in the meanwhile, a boy came who was handed over
some papers. That the accused Gulshan revealed the name of the said boy as
Mehraj Ahmed Sheikh, resident of Bhonikhet, also being witnessed by him
(petitioner/witness) in the court on today through VC. That thereafter he, i.e.
the petitioner, talked to his cousin Farooq Feroz on phone who is the resident of
Thanamandi. That he told him to accompany him as they had to play a cricket
match on the next day. That when we reached Thanamandi, his cousin Farooq
Feroz was standing on the road and he also boarded in the vehicle on the back
seat. That when they crossed Dera Gali and reached the Buffliaz, they
witnessed the Police Naka who stopped them. That upon their search, they
recovered arms and ammunition from them as well as some posters. That they
were taken in custody by the police. That he told the police party that he was
not involved in the case but has been got trapped by the co-accused Gulshan.
CRM(M) No. 410/2025 Page No. 8
That they were all interrogated at JIC and the co-accused Gulshan also told in
his presence to the interrogators that he, i.e. the petitioner, is not involved in the
case. That two days after their arrest in the case, a blast occurred at Surankote
besides some casualties also took place at Dera Gali. That he was not in a
position to give the true account of the incident during the said time. That
thereafter he wrote an application from prison expressing his willingness to
become an approver. That he was accordingly brought before the learned Chief
Judicial Magistrate who granted him pardon and also recorded his statement on
24-8-2024. That the contents of the said statement are true and correct. That
subsequently he was examined at trial after his physical appearance and was
subjected to examination-in-chief as well as cross-examination by the two
sides. In cross-examination, the petitioner inter-alia deposed that when the co-
accused Gulshan told him for accompanying him to Dhangri, Rajouri, the
Gulshan told him that he will get some money from there. That since he (that
is, the petitioner) knew that the co-accused Gulshan is also indulging in bovine
smuggling, as such, believed that he would have to get money from the said
place from someone. That he did not express his willingness during
investigation of the case for becoming an approver as he was under acute
pressure during such period. That he did not make any attempt to deboard the
co-accused Gulshan along the way on incident day or to report the incident to
some Police Post as the circumstances were not felt favorable by him. That his
cousin Farooq Feroz was let off by the investigating agency for want of any
evidence against him. That it is not true that he got the statement recorded as an
approver in order to save himself.
11. It is profitable to reproduce the provisions of Section 306 of the code
corresponding to provisions of Section 343 of the BNSS relating to the law on
the subject for the sake of convenience.
Tender of pardon to accomplice
(1) With a view to obtaining the evidence of any person supposed to have been
directly or indirectly concerned in or privy to an offence to which this section
applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage
of the investigation or inquiry into, or the trial of, the offence, and the Magistrate
of the first class inquiring into or trying the offence, at any stage of the inquiry or
trial, may tender a pardon to such person on condition of his making a full and
true disclosure of the whole of the circumstances within his knowledge relative
CRM(M) No. 410/2025 Page No. 9
to the offence and to every other person concerned, whether as principal or
abettor, in the commission thereof.
(2) This section applies to–
(a) any offence triable exclusively by the Court of Session or by the Court of
a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46
of 1952);
(b) any offence punishable with imprisonment which may extend to seven
years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record–
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was
made, and shall, on application made by the accused, furnish him with a copy
of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (1)–
(a) shall be examined as a witness in the Court of the Magistrate taking
cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the
termination of the trial.
(5) Where a person has accepted a tender of pardon made under sub-section (1) and
has been examined under sub-section (4), the Magistrate taking cognizance of the
offence shall, without making any further inquiry in the case–
(a) commit it for trial–
(i) to the Court of Session if the offence is triable exclusively by
that Court or if the Magistrate taking cognizance is the Chief
Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law
Amendment Act, 1952 (46 of 1952), if the offence is triable
exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who
shall try the case himself.
12. Now the issue for adjudication before this court is whether the provisions
of section 306(4)(b) of the Code operate as a blanket ban for releasing an
approver having been tendered pardon pending termination of the trial?
13. This court is of the opinion that the aforesaid provisions of the law do
not restrict but limit the powers of the court to release an approver having been
granted pardon pending termination of the trial. The provisions of Section 306
(4) (b) of the Code are needed to be read conjointly as through the foregoing
words, it is mentioned, “shall, unless he is already on bail”, followed by the
words, “be detained in custody until the termination of the trial”. The object of
the provision logically appears to be giving protection to the approver from the
apprehended threat or danger to his person or to the person of anyone in whom
CRM(M) No. 410/2025 Page No. 10
he is interested pending termination of the trial and secondly to facilitate the
giving of the true account of the incident by him at the trial of the case as
regards himself and to every other person concerned as per his knowledge and
in corroboration of his earlier statement recorded at the time of granting him
pardon. The provisions regarding the tender of pardon to accomplices are
intended to take care of such eventualities when a crime is committed in
secrecy without being witnessed directly by any person, so that the guilty
persons will not escape punishment for want of evidence. Once an accused is
tendered pardon, on condition of his making a full and true disclosure of the
whole of the circumstances within his knowledge relative to the offenses and to
every other person concerned whether as principal or abettor, he ceases to be
categorized as an accused as long as he makes a full and true account of the
whole of the circumstances within his knowledge at the trial of the case in
corroboration of his earlier statement being recorded at the time of tendering
him pardon. When an approver after getting his statement recorded at the trial
of the case to the satisfaction of the prosecution and without any objection on
the part of public prosecutor to the effect that he wilfully concealed anything
essential or by giving false evidence, not complied with the condition on which
the tender was made, applies voluntarily for his release, he needs to be released
on bail subject to some reasonable terms and conditions.
14. However, this court is of the opinion that the right of the public
prosecutor to satisfy his opinion regarding the person who is accepting the
tender of pardon under the provisions of Section 306 or Section 307 of the
Code in terms of Section 308 of the Code as to whether such person has
wilfully concealed anything essential or by giving a false evidence has not
complied with the conditions on which the tender was made, continues up to
the closure of the evidence on both the sides in the case.
15. The provisions of Section 308 deal with the law regarding the separate
trial of the approver having been granted pardon in case the court, on the
application and certificate of the public prosecutor, passes an order to the effect
that such person has wilfully concealed anything essential or has given false
evidence not only for the offense in which he was granted pardon but also for
the offense of giving false evidence. The provisions of Article 21 of the
CRM(M) No. 410/2025 Page No. 11
Constitution of India read with the provisions of Section 528 of BNSS
corresponding to Section 482 of the Code have an overriding effect over the
provisions of Section 306 of the Code to pass such an order which is in
consonance with the sacred right of liberty and meets the ends of justice.
16. The Supreme Court has, in the case of Suresh Chandra Bahri v. State of
Bihar, 1995 Supp (1) SCC 80, while discussing the object of requiring an
approver to be detained in custody until termination of the trial, observed that
the same is not intended to punish the approver for having come forward to
give evidence in support of the prosecution but to protect him from the possible
indignation, rage and resentment of his associates in a crime whom he has
chosen to expose as well as with a view to prevent him from temptation of
saving his onetime friends and companions after he is granted pardon and
released from custody.
17. The question whether bail can be granted to an approver during trial of a
case came up for consideration before this Court in the case of Mohammad
Lateef Deedar v. State, 2010 Supreme (J&K) 308. This Court while
interpreting the provisions contained in sub-section (3) of Section 337 of the
J&K Cr. P. C, which is in pari-materia, with the provisions contained in Section
306(4)(b) of the Code of Criminal Procedure, 1973, has held that High Court is
vested with jurisdiction to enlarge an approver on bail even before conclusion
of trial in appropriate cases. In this regard, paras 11, 14, 15 and 16 of the said
judgment are relevant to the context and the same are reproduced as under:
“11. Sub section 3 of section 337 SVT 1989 cannot be interpreted
in a manner which would defeat the mandate contained in Article
21 of the Constitution of India. What purpose is to be achieved by
keeping an approver in custody during the trial after he
satisfactorily complies with the terms and conditions of the order
of pardon. The custody of an approver is co-terminus with
fulfillment of terms and conditions of the order of tender of
pardon. The moment he complies with the terms and conditions of
tender of pardon, he gets right to be released. Keeping such a
person detained until termination of the trial would not only be
violating the constitutional guarantees as contained in Article 21
of the Constitution of India but would also tantamount to inflicting
punishment on him.
14. The expression ‘unless he is already on bail’ occurring in sub
section 3 of section 337 SVT 1989, apparently, makes it writ largeCRM(M) No. 410/2025 Page No. 12
on the face of the statute that the trial Court, in the facts and
circumstances of the case, has the power to grant bail to an
accused person under sections 497/498 Cr. P.C. It appears the said
power of admitting the accused person to bail is, thus, retained by
sub section 3 of section 337 SVT 1989 and has not been taken
away. Otherwise also sections 497/498 Cr. P.C. confer
discretionary power on the Court to admit an accused to bail in
accordance with the settled principles and norms of law. If the
Court of competent jurisdiction is having jurisdiction to admit and
enlarge an accused person to bail, the said power of admitting an
approver to bail, if denied to the trial Court/Court of competent
jurisdiction, will inflict an irreparable damage on the rights of the
person who turns approver and is granted pardon and satisfies the
terms and conditions of the tender of pardon. Such a person would
land in worst position vis-a-vis the perpetrators of crime. Assume
a situation that trial Court admits the accused person to bail on
some valid legal grounds, which would include lack of material
supporting the prosecution case, on the interpretation of sub
section 3 of section 337 SVT 1989, as put by learned counsel for
the respondents, the approver who has been tendered pardon has to
remain in custody until termination of trial. This will not only
create an absurd situation but will be against the basic
fundamentals of the Constitution. The provision of law cannot be
given such an interpretation which will create an absurd situation
and will render it unjust as well. The power to grant or refuse bail
is a power conferred by statute on a Court of law. This power
cannot be taken away by any judicial interpretation as any such
interpretation will tantamount to legislating the law which does
not fall within the domain of Courts. The expression ‘unless he is
already on bail’ occurring in sub section 3 of section 337 SVT
1989 preserves the power of grant of bail, which power is
correlated to the right to personal liberty guaranteed under Article
21 of the Constitution of India. Sub section 3 of section 337 SVT
1989, thus, may not restrict the jurisdiction of the trial Court to
consider the grant of bail to an approver in terms of sections
497/498 of SVT 1989. Otherwise the sub section 3 of section 337
SVT 1989 would fall foul of Articles 14 and 21 of the Constitution
of India. This issue of competence of the trial Court to grant bail to
an approver has not been raised and debated, as such is left open to
be decided in an appropriate case.
15. The approver who is tendered pardon, on satisfaction of
conditions contained therein, ceases to be an accused and has to
get benefit of pardon, which would mean that he is not to be
punished. In such eventuality, he may not even be required to be
asked to furnish bail and surety bonds. He can be released on
furnishing Undertaking/Personal bond to faithfully continue to
abide by the terms and conditions of tender of pardon. The Hon’ble
Supreme Court in case titled State (Delhi Administration)
Appellant v. Jagjit Singh-Respondent, reported in 1989 Supp (2)
CRM(M) No. 410/2025 Page No. 13
SCC 770: AIR 1989 SC 598, has held that once an accused is
granted pardon under Code of Criminal Procedure (Cr.PC), he
ceases to be an accused and becomes witness for the prosecution.
It is further ruled that so long as the prosecution does not certify
that he has failed to comply with the conditions of grant of pardon,
he continues to be a witness.
16. In view of the discussion made hereinabove, can it still be said
that an approver, who satisfies the terms and conditions of the
tender of pardon, cannot be ordered to be released from prison. In
order to meet such like eventualities, the legislators have enacted
section 561-A Cr. PC, Svt 1989 which provides saving of inherent
power of High Court, Section 337 Svt 1989 falls under Chapter
XXIV and Section 561-A falls under Chapter XLVI, Section 561-
A is reproduced hereunder:
“561-A. Saving of inherent power of High Court nothing in
this Code shall be deemed to limit or affect the inherent power of
the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.
18. This court has also in Bilal Ahmed Lone vs UT of Jammu and Kashmir
and others CRM M number 656/2023 decided on 13-9-2024 held under
similar circumstances that an approver can be granted bail before the
conclusion of trial if there are exceptional and reasonable circumstances and
the conditions of pardon have been satisfied. It is profitable to reproduce Paras
20 and 21 of the judgment for ready reference:
20 From the foregoing analysis of the law on the subject, it is clear
that this Court in exercise of its power under Section 482 of the
Cr. P. C is vested with jurisdiction to enlarge an approver on bail
even before culmination of the trial provided there are exceptional
and reasonable circumstances involved in a particular case.
21 The inherent powers vested in the High Court in terms of
Section 482 of the Cr. P. C manifestly confirms the aforesaid
position of law. As per the aforesaid provision, nothing in the
Code of Criminal Procedure can limit or effect the inherent powers
of the High Court to make such orders, as may be necessary to
give effect to any order under the Code or to prevent the abuse of
process of Court or otherwise to secure the ends of justice. Thus,
any feter or restriction contained in the Criminal Procedure Code,
1973, which includes clause (4)(b) of Section 306 of the Cr. P. C,
cannot take away the powers of the High Court to grant bail to an
approver if it finds that the same is required to be done to secure
the ends of justice. It is obligatory for this Court to interpret the
provisions contained in Section 306(4)(b) read with Section 482 of
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the Cr. P. C in a manner that would advance the cause of justice,
otherwise we may find cases of hardship where an approver can
approach the High Court for release on bail but because of the
provisions contained in Section 306(4)(b) of the Cr. P. C, he may
not be able to secure bail. This would certainly be violative of
Article 21 of the Constitution of India, thereby posing a serious
challenge to the vires of Section 306(4)(b) of the Cr. P. C. It is,
therefore, imperative for the Court to interpret the said provisions
in a manner that would leave scope for the High Court to exercise
its inherent powers for releasing an approver on bail in appropriate
cases.
19. It is well settled by a catena of judgments of Hon’ble Apex Court and
various other High Courts of our country including this Court, that 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. That the
release on bail of an approver does not vitiate the validly granted to the pardon.
The dominant object of requiring an approver to be detained in custody until
the termination of the trial, is not intended to punish him for having come
forward to give evidence in support of the prosecution, but to protect him from
the possible indignation, rage and resentment of his associates in a crime, to
whom he has chosen to expose, as well as with a view to prevent him from
temptation of saving his associates after being granted pardon and before his
releasing on bail.
20. Once an accused is granted pardon as per the law, he ceases to be an
accused and becomes a witness for the prosecution. So long as the prosecution
does not certify that he has failed to comply with the conditions of grant of
pardon, he continues to be a witness. High Court under appropriate
circumstances can invoke its extraordinary powers vested in it under Section
482 of the Code corresponding to Section 528 of BNSS for the release on bail
of an approver pending trial of the case. Provisions contained in Section
306(4)(b) of the Code cannot be interspersed to defeat Article 21 of the
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Constitution. Custody of an approver is co-terminus with fulfillment of pardon
conditions. Section 306(4)(b) of the Code appears to be directory and not
mandatory. 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 recorded at the time of granting him pardon
should not be detained indefinitely. Such a person cannot invoke the provisions
of Section 439 of the Code corresponding to Section 483 of BNSS for the
simple reason of, not being in the category of an accused, with the application
of provisions of Section 306 of the Code corresponding to Section 343 BNSS,
in his case.
I. (Suresh Chandra Bahri vs State of Bihar AIR 1994 SC 2420
II. State Delhi Administration vs. Jagjit Singh AIR 1989 SC 598
III. Sudhanshu Ranjan @ Chottu Singh vs. The Union of India Through
National Investigation Agency, New Delhi 2022 Supreme (J&K) 910
IV. Mohd Lateef Deedar vs State 2010 Supreme (J&K) 308
V. Mohd Sultan Mir vs State of J&K 2010 Legal Eagle (J&K) 149
VI. Kumad Kumar Mandal vs. State of J&K 2007, Supreme (J&K) 467
VII. Tariq Ahmad Dar vs. National Investigation Agency Through NIA
P/S New Delhi 2023 SCC Online J&K 236
21. This Court is of the opinion that besides availing remedy under Section
482 of the Code (528 BNSS), an aggrieved “Approver” under appropriate
circumstances can even invoke the writ jurisdiction under Article 226 of the
Constitution before a High Court seeking his release on bail pending
termination of the trial, by satisfying the Court that he has fully complied with
the terms and conditions of the pardon by giving his statement at the trial of the
case facing the cross-examination also, without any contradiction or retraction
vis.a.vis his earlier statement recorded by the Chief Judicial/Metropolitan
Magistrate at the time of granting him pardon and that he seeks his enlargement
in the case before the conclusion of the trial, at his own risk and responsibility.
He is not even needed to plead that the trial of the case is not likely to conclude
within a short span of time. He is rather needed to plead that his unnecessary
detention in the facts and circumstances of the case shall deprive him of his
CRM(M) No. 410/2025 Page No. 16
Right to Liberty guaranteed under Article 21 of the Constitution. Any strict
interpretation of the Clause 4(b) of Section 306 of the Code [4(b) of Section
343 BNSS] will tantamount to acknowledging a procedure which is not fair,
just and reasonable, especially when an, “Approver” is found to have stood by
his disclosure upto the trial, without any sort of contradiction or retraction,
deformation or distortion being apparent by no objection on the part of the
Public Prosecutor in relation to his statement at the trial as a prosecution
witness. After an “Approver” complies fully with the conditions of his pardon,
the only concern which needs to be addressed is whether out of his/her free will
and choice, he/she wants to be enlarged pending conclusion of the trial, as the
main logical object of the provisions of the Section 306(4)(b) of the Code is to
prevent the Approver from any possible indignation, rage, resentment of his
guilty partners whom he has chosen to expose, together with any apprehension
or his retraction from the earlier account/disclosure meriting his pardon.
Once the statement of an “Approver” is recorded even at the trial without
any objection from the Public Prosecutor that can lead to his/her indictment
under Section 308 of the Code and secondly when he/she willingly seeks
his/her enlargement, there should be no objection in his/her release on bail
subject to final orders at the conclusion of the trial.
22. An “Approver” cannot be forced to suffer detention against his will, even
after standing by his disclosure and complying with the terms of his pardon at
the trial as a prosecution witness. The mandate of Article 21 of our Constitution
as interpreted in Maneka Gandhi’s case is that no one shall be deprived of his
life and personal liberty except by procedure established by law, which must be
reasonable, fair and just but not arbitrary, whimsical or fanciful and it is for the
Court to decide in the exercise of its constitutional power of judicial review,
whether the deprivation of life or personal liberty in a given case is, by
procedure, which is reasonable, fair and just or it is otherwise.
23. The provisions of Section 306(4)(b) of the Code [Section 343(4)(b)
BNSS] in their present form are never ultra vires the constitution as the care of
important issues is being taken under such provisions viz.
I. Approver shall not retract from his disclosure pursuant to which
he/she was granted pardon.
CRM(M) No. 410/2025 Page No. 17
II. Approver shall not feel scared of his being at large due to the
possible danger at the instance of his associates whom he/she has
chosen to expose.
What is needed by the Court is the logical interpretation of the said
provisions of law in the given facts and circumstances of the case. However,
what is important is that the provisions of the Section 306 of the Code [343 of
BNSS] shall not be misused for accomplishment of ulterior motives.
The pardon under the provisions of the law is given to an accused
notwithstanding his extent of involvement. Pardon needs to be tendered at the
request of the Investigating Officer, upon his satisfying the Court in writing
that a reasonable and fair need has arisen in the facts and circumstances of the
case for granting pardon to an accused on the conditions as laid down in
Section 306 of the Code, having regard to the nature of the available evidence
and the seriousness of the crime.
24. A casual and an unfair invocation of the provisions of the Section 306 of
the Code corresponding to Section 343 of the BNSS is likely to cause serious
miscarriage of justice. Investigating Agency in a particular case shall take a
reasoned decision in the facts and the circumstances of the case especially
having regard to the nature of the available evidence, before either offering a
co-accused ‘Tender of Pardon’ or accepting his offer for the same.
25. However, the right of the Public Prosecutor to certify that in his opinion
the “Approver” has willfully concealed anything essential or by giving false
evidence has not complied with the conditions on which the tender was made,
in terms of the provisions of Section 308 of the Code corresponding to Section
345 of BNSS, has to remain till the recording of the evidence on both the sides,
for any consequent action as provided under the said provisions. An approver
having been tendered pardon is not only required to stand by his statement
recorded earlier before a Chief Judicial/Metropolitan Magistrate or a Magistrate
of the First Class inquiring or trying the offence at the time of tendering him
pardon but he is rather required to make a full and true disclosure of the whole
of the circumstances within his knowledge relative to the offence and to every
other person concerned whether as a principal or abettor in the commission
thereof. Such a fact can be fully ascertained only after recording of the
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evidence on both the sides. Any possibility of a fact being brought at the trial
through either prosecution or defense evidence disputing the disclosure of the
“Approver” as being full and true cannot be ruled out. The final/absolute orders
regarding the treatment to be given to the “Approver” can be passed at the final
disposal of the case.
26. However, where subject to final outcome of the trial, an “Approver”
prima facie appears to have complied with the conditions of pardon by getting
his statement recorded at the trial as the prosecution evidence, without any
contradiction and is further ready and willing at his own risk and responsibility
to be enlarged, he deserves to be so enlarged on bail subject to some reasonable
terms and conditions.
27. In the backdrop, the instant petition is allowed and the order impugned
dated 05.04.2025 of the ld. Trial Court is set aside. The petitioner-Ajaz Ahmad,
S/o. Abdul Rashid R/o. Village Sailan Tehsil Surankote, District Poonch is
admitted to bail in the case FIR No. 358/2023 of Police Station, Surankote
Poonch subject to his furnishing of surety and personal bonds to the tune of Rs.
1 Lac (One Lac) respectively to the satisfaction of ld. Registrar Judicial, Jammu
Wing, of this Court and the Superintendent of the Jail concerned for assuring
this Court that he shall appear at the trial of the case, if so directed, and shall
abide by any subsequent orders, if any, passed in the case in relation to his
person. In case the requisite surety bond is furnished to the satisfaction of the
ld. Registry Judicial, Jammu Wing, and attested by her, the Registry shall issue
a formal Release Order directing the Superintendent of the Jail concerned for
release of the petitioner forthwith in the case after obtaining the requisite
personal bond in the amount of Rs. One Lac from him.
28. Disposed of.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
23.03.2026
Shahid Manzoor
Whether the judgment is speaking Yes
Whether approved for reporting Yes
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