SRINAGAR: The High Court of Jammu and Kashmir and Ladakh has ruled that an approver in a criminal case cannot be mandatorily kept in custody till the conclusion of trial, holding that such detention is not absolute under the law and must yield to the constitutional guarantee of personal liberty.
The judgment was delivered by Justice Mohd Yousuf Wani while allowing a petition filed by Ajaz Ahmed of Surankote in Poonch district, who had challenged the rejection of his bail application by a trial court in a militancy-related case registered in 2023.
The case pertains to FIR No. 358/2023 registered at Police Station Surankote after security forces intercepted a vehicle at Buffliaz Chowk and recovered arms, ammunition, cash and material allegedly linked to the banned outfit Hizbul Mujahideen. The petitioner was among those arrested and later sought pardon by offering to disclose the full facts of the case. He was granted pardon by the Chief Judicial Magistrate and subsequently examined as an approver, with his statement recorded during both investigation and trial.
Despite this, his bail plea was rejected by the trial court on the ground that under Section 306(4)(b) of the Criminal Procedure Code, now reflected in the Bharatiya Nagarika Suraksha Sanhita, an approver is required to remain in custody until the termination of trial.
Setting aside the trial court’s order, the High Court held that such a reading of the provision is legally unsustainable and contrary to the mandate of Article 21 of the Constitution. The Court observed that the requirement of custody for an approver is intended primarily for protection and to ensure truthful disclosure, and not as a punitive measure. It noted that once an approver has complied with the conditions of pardon by giving a full and consistent account of the incident, continued detention would amount to an unjust deprivation of liberty.
The Court further observed that an approver, after being granted pardon, ceases to be an accused and assumes the role of a prosecution witness, and therefore cannot be subjected to indefinite incarceration merely on the basis of a rigid interpretation of procedural law. It held that the High Court retains inherent powers to grant bail in such cases to secure the ends of justice and prevent abuse of the legal process.
Allowing the petition, the Court granted bail to the petitioner subject to furnishing surety and personal bonds of Rs 1 lakh each, with directions to cooperate with the trial proceedings and comply with any further orders of the court.
The Court clarified that its observations were confined to the issue of bail and would not influence the merits of the case, which will be decided independently by the trial court.
