No need to hear Narendra Amin’s co-accused, says Gujarat high court

In an important judgment in the Sohrabuddin Sheikh fake encounter case, the Gujarat high court on Thursday ruled that the magistrate's court concerned can hear Narendra Amin's approver plea without hearing the co-accused in the case. Amin, an accused in the Sohrab case, is seeking permission to become an approver in return for complete pardon.

The division bench of justice Jayant Patel and justice HB Antani gave this judgement while hearing the petition filed by the CBI and Amin challenging the order of the special CBI judge AY Dave in the matter. The high court disposed of the petition by setting aside the special CBI magistrate's order and asking the lower court to proceed with further hearing on Amin's approver plea.

Earlier, the CBI judge had referred Amin's plea to the high court with the question whether Amin's co-accused should be heard on his application. Judge Dave had also raised doubts about the constitutional validity of section 306 of CrPC under which an accused can be allowed to become an approver in the case.

The high court in its order on Thursday said the Constitution as well as Supreme Court orders were clear on the exercise of power by the magistrates in such cases. The court further said that section 306 of the CrPC granted protection to the co-accused well.

The high court bench observed that whether an accused should be allowed to become approver or not was essentially a matter to be decided between the accused who had applied for pardon, the prosecuting agency (in this case the CBI) and the magistrate concerned. The other co-accused had no say in the matter. The reason for this was that once pardon was granted to an accused, the other co-accused in the case had a right to cross-examine him during recording of his statement as an accomplice witness, the bench said. 

On the question of the magistrate's power to allow an accused to become an approver, the high court said that all that the magistrate had to keep in mind was whether or not the testimony of such an accused will advance the interest of justice. But it is also for the prosecution to satisfy the magistrate that pardon to an accused who wishes to become an approver will help prosecute offenders whose conviction is not easy without the approver's testimony, the court said.

When the other accused asked for a stay on the high court's Thursday order, the bench granted their request but ordered that the lower court can proceed with the hearing but cannot pass any order for 2 weeks.