The provision of the “approver” is an old and established one, but prosecutors use it sparingly because, in spite of its legitimacy, it raises serious ethical questions. First, there is considerable debate over whether a prosecutor should free a person known to have participated in a criminal conspiracy. Then there is the question of whether an accused person can ever turn approver without the manipulation of an investigating agency—a body which controls all the witnesses produced for a trial.
Further, if an approver is promised complete freedom in exchange for their testimony, it is difficult to say that the testimony is completely voluntary. A former judge of the Bombay High Court told me that this lack of certainty makes the use of an approver a dangerous proposition. “It is a very weak piece of evidence,” he said of an approver’s testimony. “There must be substantive evidence to which the confessional statement may be added. It is a shortcut method of proving guilt.” Using an approver to fix the other accused, he said, “always shows lack of investigation.”
In some legal systems, such as that of the United States, a state prosecutor—in the US, the district attorney—is actively involved in the investigation. Indian prosecutors, however, are not supposed to do this. Lawyers may be appointed as “police prosecutors” to help police patch up legal loopholes before the case is presented. But the public prosecutor is an independent agent who takes a stand for justice. They may use their discretion to determine how a case is conducted, and are allowed even to file for discharge of the accused if the facts of the case seem unsatisfactory to them. The use of an approver necessitates the prosecutor being privy to investigation, and involves the choice of the most “natural” witness from among the accused persons.
Nikam first used the approver provision while working as a public prosecutor in Jalgaon, he told me, although he could not remember when this was. The case involved the murder of a pregnant woman by her family members. One of those hired to commit the crime was made an approver, which led to the other accused being convicted and sentenced to life imprisonment.
The criminal conspiracy under investigation in the 1993 bombing case was vast and complex, with each of the accused persons facing a variety of charges in addition to the main list of crimes. Some were found to have travelled to Dubai for a planning meeting, while others were supposed to have gone to Pakistan for arms training. Some had smuggled arms and explosives along the Konkan coast and met in Mumbai to prepare for the bombings.