Former cop N K Amin has decided to turn approver in the Sohrabuddin fake encounter case. The Central Bureau of Investigation, which has decided to use Amin to dig out information against Amit Shahis also facing a lot of flak by the Opposition which terms it as a Congress Bachao Agency.
There are two questions that come up for perusal at this point of time: 1. How important is an approver be in this case? 2. Is the CBI an independent body?
R Shrikumar, who was a CBI officer which cracked the Rajiv Gandhi murder case and C V Nagesh, senior advocate who has battled the CBI in the court in the Classik Computer case involving former chief minister of Karnataka, S Bangarappa speak to rediff.com about the issue.
Before getting into the discussion let us check the provision under the Code of Criminal Procedure which deals with the issue of an approver.
Sections.306 to 308 of the Cr.P.C deals with the subject of approver:
Who is an Approver: An approver is an accomplice who has been tendered pardon on condition of his true disclosure of the facts & circumstances of the crime by becoming a witness on behalf of the prosecution. An accomplice is a person who is either directly/ indirectly supposed to have been concerned in an offence or privy to an offence.
R Shrikumar on approvers: For the investigating agency and the prosecution, an approver's evidence is good. He is basically the person who gives a good description of the happenings in relation with the case. The investigating agency acts very much in its purview while coaxing a person to turn approver in a case. A person could turn approver either on his own or if the investigating agency coaxes him to do so. However, the sole discretion to take this step would lie with him.
The statements of an approver would have to be coupled with evidence and that would be the job of the investigating agency to find out.
When a person turns an approver, he buys his freedom. He basically admits to his offence and that would earn him his freedom or lesser punishment than what is stipulated for the crime that was committed by him. However, the approver must ensure that he is speaking the truth and at no point of time misguides the investigating agency or tells lies. If he has done something to this effect then he runs the risk of getting enhanced punishment by the court.
C V Nagesh on approver: For me, this is a failure on the part of the investigating agency. It is of no consequence whatsoever. I would not agree with the fact that an approver buys his freedom when deciding to turn into one. His pardon would be the sole discretion of the court and if the court finds that his offence is grave, then there is no hard and fast rule that his sentence should be reduced or he should be spared. Following the commission of an offence, the investigating agency does have the right to tell a person to turn approver. It is for them to collect as much material as possible and corroborate the same so that the statements have evidentiary value. However one must bear in mind that the investigating agency does not have the right to seek pardon for an accused
Investigating agency is nobody to say that he should be excused or granted pardon by the court. Why should an investigating agency contribute to an accused going scot-free? This whole thing regarding approvers, according to me is just a trick by the investigating agency to strengthen its own case. It only shows the failure of an agency probing the crime and gives the indication that the material evidence on record is shabby in nature and they need to fire their case from the shoulder of another accused.
Shrikumar on CBI: I find the allegations against the CBI being a stooge of the ruling party silly in nature. I don't subscribe to the view that there is no independence in CBI's functioning. Those making allegations regarding the independence of CBI should stop talking and instead take steps to change the scenario. If they do have a problem with the independence then let them take steps to ensure that the agency gets more independence. Just by making allegations nothing will change.
C V Nagesh on CBI: We certainly need a central agency. But such an agency should not be controlled by either the state or the union governments. It should be an independent body which should be regulated by a committee. It is sad to see what is happening with the CBI. The past glory where the people called it as a free and fair agency does not exist any longer. I have seen for myself how this agency can be twisted and turned according to the likes and dislikes of the party in power at the centre.
Let the CBI continue to exist, but it should be answerable to a committee comprising a Supreme Court and high court judge, a retired IPS and IAS officer. This way it would be regulated and will be able to function independently.
