Research › Browse › Judgment

Patna High Court · body

1973 DIGILAW 158 (PAT)

P. R. Sarkar v. State Of Bihar

1973-08-22

B.P.JHA

body1973
Judgment 1. These two criminal miscellaneous petitions arise out of one commitment order dated the 22.11.1972, passed by Shri R.P. Srivastava, Special Munsif - Magistrate. Patna. Both these petitions were heard together, and therefore, this Judgement will govern both these cases. 2. By an order dated the, 22nd November, 1972, the committing Magistrate committed the petitioners in both these cases, that is, in Criminal Miscellaneous Nos. 5 and 26 of 1973, to stand their trial before the Sessions Court. Against that order, the petitioners have moved these two petitions for quashing the commitment order under Sec. 561A of the Code of Criminal Procedure (hereinafter referred to as the Code). 3. Shri A.K. Sen, learned Counsel for the petitioners, challenged the validity of the pardon granted to Madhavanand by an order dated the 4th May, 1972, by the District Magistrate Patna. .on these grounds : (i). That under the proviso to Sec.337(1) of the Code, the District Magistrate has no jurisdiction to grant pardon during investigation. (ii). That the order granting pardon is illegal, because the District Magistrate did not record any reason while granting the pardon. In this connection, the learned Counsel for the petitioners, cited a decision of the Supreme Court in the State of U.P. V/s. Kailash Nath Agarwal (1973) 1 SCC 751 : (1973 Cri LJ 1196). The Supreme Court in that case held at Paragraph 12 as follows : "Similarly, where the offence is under investigation, it is only a Magistrate having jurisdiction in a place where the offence might be enquired into or tried, can exercise the power. Even such a Magistrate can exercise that power only if the sanction of the District Magistrate has been obtained. While there is a restriction on the powers of the Magistrate of the First Class, no such restriction is to be found in the proviso on the powers of the District Magistrate either at the stage of investigation or inquiry into or trial of the offence." It is, therefore, clear from the decision that the District Magistrate has the authority to grant pardon even at the stage of investigation. Shri Deobrata Mookherjee, learned Counsel for the State, contends that the District Magistrate has the authority to grant pardon during investigation. In my opinion, the contention of Mr. Mookherjee is correct. 4. Shri Deobrata Mookherjee, learned Counsel for the State, contends that the District Magistrate has the authority to grant pardon during investigation. In my opinion, the contention of Mr. Mookherjee is correct. 4. The other contention of the learned Counsel for the petitioners is that the impugned order of the District Magistrate is illegal, because he failed to record his reasons while granting pardon. In the above mentioned case, the Supreme Court held that Sub-Section (1A) of Sec.337 of the Code makes it obligatory on the Magistrate tendering pardon to record his reasons for so doing. In my opinion, it is imperative on the part of the Magistrate granting pardon to record the reasons for so doing. If the reasons are not recorded the order of the Magistrate will not be a speaking order. If it is not a speaking order, it will be difficult for the revising Court to revise the order, in the absence of the reasons. In my opinion, Sub-Section (1A) of Sec.337 is a mandatory provision. If the Magistrate granting pardon does not assign any reason, the whole order of the Magistrate can be quashed on this ground alone. If the validity of the pardon is challenged at a very early stage, it is the duty of the Court to get the illegality cured. In this connection, the decision of the Supreme Court in H.N. Rishbud V/s. State of Delhi 1955 (1) SCR 1150 at p. 1164 : (1955 Cri LJ 526) is relevant. In that decision, the Supreme Court held as follows at p. 1164 : "When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Sec. 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of Justice." It is, therefore, clear that if the breach of such a mandatory provision is challenged at the earliest stage, it is the duty of the Court to rectify such error. The decision would be quite different, if such an error is pointed out in an appeal or revision after conviction. The decision would be quite different, if such an error is pointed out in an appeal or revision after conviction. 5 The object of Sec.337(1) of the Code is that the Magistrate will tender pardon with a view to obtaining evidence of any person supposed to have been directly or indirectly concerned in or privy to the of fence. The Magistrate must come to the conclusion as to what compelled him to grant the pardon and, therefore, it is essential for the Magistrate to record reasons for so doing. The magistrate may be compelled to tender pardon to any person on the ground that it was impossible for the prosecution to prove the case in the absence of the evidence of such person (approver). Suppose in a case five eye witnesses are already there. The Magistrate can refuse to grant pardon on the ground that there are enough materials on the record to prove the case, and, therefore, it is not necessary to examine the approver in this case. In this circumstance, it is obligatory on the part of the Magistrate to record reasons while granting pardon. On a perusal of the order passed by the Magistrate on the 4th May, 1972. it is apparent that no reasons have been assigned by the District Magistrate while granting pardon. In this view of the matter. I quash the order of granting pardon dated the 4th May, 1972, passed by the District Magistrate, Patna. 6. If the testimony of Madhavanand (approver) is excluded from the commitment proceeding, then there is no reliable evidence on the record to show that there were sufficient materials to commit the accused persons to the Court of Session. In this view of the matter, the commitment order is quashed. 7. In the result. I allow the application and remand the whole matter to the Special Magistrate, Patna, to conduct the enquiry afresh in the circumstances mentioned below. The prosecution or Madhavanand will take necessary steps, if so advised to obtain pardon from the District Magistrate in accordance with law, and, if the pardon is obtained, the commitment proceeding will be initiated afresh. The committing Magistrate will examine the approver and other witnesses as may be produced by the prosecution. If he desires to examine any other witness in the interest of justice, he can do so. 8. The committing Magistrate will examine the approver and other witnesses as may be produced by the prosecution. If he desires to examine any other witness in the interest of justice, he can do so. 8. Before parting with this case, I may observe that the District Magistrate while granting pardon shall hear the accused persons also because it is a Judicial Proceeding. If the order of granting pardon is passed during investigation the accused shall not be heard because till that time no police report (chargesheet under Sec.173 of the Code) is preferred against the accused persons. It may be further noted that in the present case, the chargesheet was presented by the Delhi Special Police Establishment and cognizance was taken on the basis of the chargesheet by the Special Magistrate and, therefore, on that basis the special Magistrate will conduct fresh enquiry under Chapter XVIII of the Code of Criminal Procedure as indicated above.