GAGU @ NAVGHAN RANDHIR v. STATE — 1973 DIGILAW 62 (GUJ)

A. A. DAVE, J. ( 1 ) THIS revision application raises a very interesting question of law relation to the power of the court to tender a pardon with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence. ( 2 ) IN order to appreciate the point in question it will be worthwhile to refer to the salient facts of this case. A Charge sheet was submitted by the police against seven accused alleging that in furtherance of the common intention to murder the deceased they all committed his murder punishable under sec. 302 I. P. C. read with sec. 34 I. P. C. It was alleged that accused No. 1 had illicit relationship with the wife of the deceased Gagu. So accused No. 1 wanted to kill Gagu. He therefore is alleged to have taken into confidence other accused and in furtherance of their common intention Gagu is alleged to have been murdered. One Arjan Khengar is one of the seven accused persons. The statements recorded by the police disclosed that deceased Gagu was last seen in the company of Arjan Khengar. It is stated by the witnesses before the police hat it was this Arjan Khengar who had taken away Gagu while he was in the Salt Works and thereafter he was not seen alive. After Arjan Khengar was arrested he was sent to the Taluka Magistrate for making a confession. However Arjan Khengar refused to make any confession slating that he had not committed any offence. Arjan also sent an application to the court from the jail for being released on bail on 1-2-1973. Thereafter? a typed application bearing the thumb impression of the accused Arjan dated 16-2-1973 was sent to the court stating that in a pardon was given to him he was prepared to make a true disclosure of all the facts. On 2 the accused was called before the learned Magistrate. The accused Arjan Khengar withdrew his application for bail. After considering his application for pardon the learned Magistrate passed an order under sec. 337 Criminal Procedure Code granting him a pardon on condition that he made a true disclosure of the facts concerning the offence. Thereafter while his statement as envisaged under sec. The accused Arjan Khengar withdrew his application for bail. After considering his application for pardon the learned Magistrate passed an order under sec. 337 Criminal Procedure Code granting him a pardon on condition that he made a true disclosure of the facts concerning the offence. Thereafter while his statement as envisaged under sec. 337 (2) was to be recorded by the learned Magistrate original accused No. 1 filed a revision application in the sessions court challenging the order of the learned Magistrate giving pardon to the accused-Arjan Khengar. The learned Sessions Judge refused to interfere with the order passed by the learned Magistrate. Accused No. 1 therefore has preferred the present revision application. ( 3 ) MR. H. K. Thakore learned Advocate for the petitioner submitted that no tender of pardon could be tendered to the accused unless there was material before the court to find out that he would make a full and true disclosure of the whole circumstances within his knowledge relating to the offence. Mr. Thakore submitted that in the instant case accused Arjan Khengar had already made a statement before the Taluka Magistrate that he did not know anything about the offence and that he was not guilty. Under the circumstances Mr. Thakore urged that unless there was material before the court that accused Arjan Khengar was directly or indirectly concerned in or privy to the offence no pardon could be tendered to him He submitted that the very statement of the accused before the Taluka Magistrate would go to show that he had no knowledge with regard to the present offence. Under the circumstances Mr. Thakore urged that the order passed by the learned Magistrate tendering pardon to the accused was clearly wrong. He invited my attention to sec. 339 Criminal Procedure Code which states"339 a pardon has been tendered under sec. 337 or sec. 338 and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has either by willfully concealing any thing essential or by giving false evidence not complied with the condition on which the tender was made such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter"sub-sec. (2) states the statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial. Referring to sub-secs. (1) and (2) of sec. 339 Criminal Procedure Code Mr. Thakore very vehemently urged that the statement envisaged by sub-sec. (2) would mean a statement of the accused to whom pardon tendered recorded prior to his evidence in court. He urged that the statement referred to in sub-sec (2) would not include a statement contained in his evidence before the court Mr. Thakore therefore urged that it was incumbent on the learned Magistrate while tendering pardon to the accused to record his statement under sec. 164 Criminal Procedure Code before he was examined as a witness as envisaged in sec. 337 (2) Criminal Procedure Code. ( 4 ) MR. G. T. Nanavati learned Assistant Government Pleader who appeared on behalf of the State supported the order passed by the learned Magistrate. He submitted that sec. 337 Cri. P. C. did not envisage any statement of the accused to be recorded under sec. 164 of the Code. He urged that the section merely provided that the Magistrate may tender a pardon on condition that the accused made a full and true disclosure of the circumstances relating to the offence within his knowledge. He submitted that this full and true disclosure of the circumstances is to be made by the accused when he is examined as a witness in court and not necessarily prior to his examination as a witness in court. ( 5 ) IN order to appreciate the rival contentions in their proper perspective it will be worthwhile to refer to sec. 337 (1) of the Code which states" In the case of any offence triable exclusively by the High Court or court of Session or any offence punishable with imprisonment which may extend to seven years or any offence under any of the following sections of the Indian Penal Code namely secs. 337 (1) of the Code which states" In the case of any offence triable exclusively by the High Court or court of Session or any offence punishable with imprisonment which may extend to seven years or any offence under any of the following sections of the Indian Penal Code namely secs. 161 165 165 216 369 401 435 and 477a the District Magistrate a Presidency Magistrate a Sub-divisional Magistrate or any Magistrate of the first class may at the stage of the investigation or inquiry into or the trial of the offence with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof":thus the first part of sec. 337 (1) of the Code enumerates the offences in which the accused could be tendered a pardon Tile second part enumerates the persons who can tender a pardon and the concluding portion mentions the circumstances in which a pardon could be tendered. For our purpose the last portion of sec. 337 (1) is material. The purpose for tendering a pardon is to obtain evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence Thus if a person is supposed to have been directly or indirectly concerned in or privy to the offence that is if it is alleged that the person concerned has something to do with the offence and if it is found necessary to obtain his evidence the authority mentioned above may tender a pardon to such a person on condition that he makes a true and full disclosure of the whole of the circumstances within his knowledge relating to the offence. The only condition which an authority can impose on the accused before tendering pardon to him is that he should make a full and true disclosure of all the facts relating to the offence within his knowledge. Sub-sec. (1a) of sec. 337 states:-"every Magistrate who tenders a pardon under sub-sec. The only condition which an authority can impose on the accused before tendering pardon to him is that he should make a full and true disclosure of all the facts relating to the offence within his knowledge. Sub-sec. (1a) of sec. 337 states:-"every Magistrate who tenders a pardon under sub-sec. (1) shall record his reasons for so doing and shall on application made by the accused furnish him with a copy of such record". Thus before tendering a pardon under sub-sec. (1) it is obligatory on the learned Magistrate concerned to record his reasons for doing so. The pertinent question which arises for my consideration is-whether it is obligatory on the Magistrate to record a statement of the accused person in order to find out whether his evidence would be material for the purpose of an inquiry or trial before tendering a pardon to him. In my opinion sec. 337 of the Code does not envisage recording of any statement of the accused before tendering a pardon to him if there is sufficient material on record from which the Magistrate can come to the conclusion that in the interest of justice it is necessary to tender a pardon to him with a view to obtaining his evidence in court. The learned Magistrate in the instant case has recorded his reasons. He has referred to the statements of witnesses recorded by the police and in his opinion in view of the extra-judicial confession made by the present accused to several persons it is necessary that he was tendered a pardon in order that he may be examined as a witness in court. Looking to sec. 337 of the Code it is difficult to agree with Mr. Thakore that before tendering a pardon to the accused it is incumbent on the Magistrate concerned to record his statement. In my opinion no such statement is envisaged in sec. 337 (1) or sec. 337 (1a) of the Code. Mr. Thakore however urged that if no statement of the accused is recorded prior to tendering a pardon to him there is no guarantee that be will make a true disclosure of all the facts relating to the offence. In my opinion no such statement is envisaged in sec. 337 (1) or sec. 337 (1a) of the Code. Mr. Thakore however urged that if no statement of the accused is recorded prior to tendering a pardon to him there is no guarantee that be will make a true disclosure of all the facts relating to the offence. He also made a grievance that if previous statement of the accused to whom a pardon is tendered is not recorded the defence will not be in a position to cross-examine properly and there would be no guarantee that this accused may not involve other persons out of enmity existing between them. It is true that if there is a previous statement of the accused that would be helpful to the Magistrate as well as to the defence in order to find out whether a person concerned has made a true disclosure of the circumstances relating to the offence within his knowledge. But it can also be found out from other evidence on record. During the course of the investigation the police may have recorded statements of several persons who may have some knowledge about the incident in question. The Magistrate therefore before tendering a pardon after considering the prosecution case as disclosed from the police statements may be of the view that in the interest of justice it is necessary to tender a pardon with a view to obtaining his evidence in court. Thus it is not necessary that in order to enable the Magistrate to tender a pardon to the accused previous statement of the accused is necessary. In fact normally an accused person is bound to deny his guilt before the police and subsequently he may be induced to make a true disclosure of the facts if he was promised a tender of pardon. In my opinion therefore reading sub-sec. (1) and sub-sec. (1a) of sec. 337 of the Code together it is clear that there is no obligation on the Magistrate to record a statement of the person concerned before he is tendered a pardon with regard to the offences enumerated in the said section. The only condition which a Magistrate can place on the accused concerned before tendering a pardon to him is that he should make a full and true disclosure of all the facts within his knowledge with regard to the offence. The only condition which a Magistrate can place on the accused concerned before tendering a pardon to him is that he should make a full and true disclosure of all the facts within his knowledge with regard to the offence. After the pardon is tendered to the accused sub-sec. (2) says that every person accepting tender under this section shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial if any. Thus if the Magistrate tenders a pardon to the accused person on condition of his making a full disclosure of ail the facts within his knowledge and if the accused accepts a tender of pardon on such condition sub-sec. (2) states that it is incumbent on the prosecution to examine him as a witness in the court of the Magistrate taking cognizance of the offence and also in the subsequent trial if any. ( 6 ) MR. Thakore urged that if a statement of the accused is not recorded before a pardon is tendered to him there is no guarantee that he will make a full and true disclosure of the facts relating to the offence within his knowledge. He also urged that in such a case it will be difficult for the defence to cross-examine him when he is examined as a witness before the Magistrate. In the absence of any such statement of the accused prior to his being examined as a witness in court there was every likelihood of pre-variation in the matter and there is no guarantee that the accused would not falsely involve other persons with a view to saving his own skin. In my opinion though there may be some force in the submission made by Mr. Thakore provisions of sec. 337 of the Code do not make it incumbent on the prosecution to get a statement of the accused recorded under sec. 164 of the Code before a pardon is tendered to him. In my opinion it is also not obligatory on the prosecution to record such a statement under sec. 164 of the Code even after a pardon is tendered to him. I do not agree with Mr. Thakore that the statement referred to in sub-sec. (2) of sec. 164 of the Code before a pardon is tendered to him. In my opinion it is also not obligatory on the prosecution to record such a statement under sec. 164 of the Code even after a pardon is tendered to him. I do not agree with Mr. Thakore that the statement referred to in sub-sec. (2) of sec. 339 of the Code indicates that before the accused who is tendered a pardon is examined as a witness his statement should be recorded by the prosecution. Sub-sec. (2) merely states that the statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial when he is prosecuted for not complying with the condition on which a tender of pardon was made. But it does not necessarily lead to the conclusion that a statement ought to be recorded before the accused is examined as a witness. The word statement used in sub-sec. (2) would not necessarily mean a statement recorded under sec. 164 of the Code and not a statement of the accused recorded by a Magistrate after a pardon is tendered to him. I do not agree with Mr. Thakore that the statement given on oath in a court would amount to oral evidence and that whenever the word statement is used that would mean a statement recorded prior to the trial and not a statement made at the trial. In fact the evidence as defined in sec. 3 of the Evidence Act means-all the statements which the courts permit and require to be made by witnesses in relation to matters of fact in an inquiry such statements are called oral evidence. Therefore there is no substance in the submission made by Mr. Thakore that whenever the word statement is used it would necessarily mean a statement recorded prior to his evidence in court. In my opinion the statement recorded in court would all the same be termed a statement and the use of the word statement in sub-sec. (2) of sec. 339 does not necessarily indicate that the Legislature meant a statement recorded prior to the trial. It may be noted that as provided in sub-sec. (2a) of sec. 337" in every case where a person has accepted a tender of pardon and has been examined under sub-sec. (2) of sec. 339 does not necessarily indicate that the Legislature meant a statement recorded prior to the trial. It may be noted that as provided in sub-sec. (2a) of sec. 337" in every case where a person has accepted a tender of pardon and has been examined under sub-sec. (2) the Magistrate before whom the proceedings are pending shall if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offences commit him for trial to the court of Session or High Court as the case may be". Thus except the offences under secs. 161 165 165 216 369 401 465 and 477 where the accused is to be tried by a special Judge he is to be committed to the court of Sessions if the Magistrate is of the opinion that there are reasonable grounds for believing that he is guilty of the offence. Thus if he is tried by a court of Sessions after he is committed there and if ultimately in the opinion of the public prosecutor the evidence given by the accused was not found satisfactory and in his opinion the accused had not made a full disclosure of all the facts within his knowledge if he is prosecuted the statement of the accused recorded by the Magistrate under see. 337 (2) could be used as evidence against him at such trial. In my opinion reference to the statement in sub-sec. (2) of sec. 339 would include a statement recorded by a Magistrate under sec. 337 and not merely a statement which may have been recorded prior to his examination by the Magistrate as provided in sub-sec. (2 ). ( 7 ) MR. Thakore invited my attention to the case of Rambharose Narbadaprasad Kachhi v. Emperor A. I. R. 1944 Nagpur 105 wherein the full bench of the Nagpur High Court at page 119 had observed as under : Bose J. asked why if the statement recorded under sec. 164 Criminal P. C. is admissible any other statement recorded by the police under sec. 161 of the Code should not also be admissible and why if secs 337 and 343 of the Code override sec. 24 evidence Act they should not also override sec. 162 of the Code. 164 Criminal P. C. is admissible any other statement recorded by the police under sec. 161 of the Code should not also be admissible and why if secs 337 and 343 of the Code override sec. 24 evidence Act they should not also override sec. 162 of the Code. The statement referred to in sec 339 of the Code could not include any statement recorded before the tender of a pardon and it is extremely unlikely that after the approver has made a full and true disclosure to a Magistrate any further statement of his should be recorded by the police. If it were so recorded then the provision in sec. 162 of the Code which prohibits the use of that statement for any purpose at any inquiry or trial save as provided in that section would come into play. Secs. 337 and 343 of the Code contain a specific qualification of the general principle laid down in sec. 24 Evidence Act but there is nothing in sec. 339 (2) to suggest any qualification of the principle laid down in sec 162. It was further observed"when an approver has been tendered a pardon under sec. 337 (1) Criminal P. C. and he has accepted the tender his statement can be legally recorded under sec. 164 on affirmation. Such a statement will be admissible in evidence against him at a subsequent trial after forfeiture of the pardon for an offence in respect of which the pardon was tendered". It will thus be seen as observed by the full bench of the Nagpur High Court that it would be legal for the prosecution to get a statement of the accused recorded under sec. 164 of the Code after a pardon is tendered to him and in case such a statement is recorded it could be used as evidence against him when he is prosecuted under sec. 339 of the Code. But that does not lead to the conclusion that the prosecution must necessarily send him to the Magistrate for recording a statement under sec. 164 of the Code. In my opinion in the context of sec. 337 of the Code the word statement used in sec. 339 (2) would also refer to the statement recorded by a Magistrate under sub-sec. (2) of sec. 164 of the Code. In my opinion in the context of sec. 337 of the Code the word statement used in sec. 339 (2) would also refer to the statement recorded by a Magistrate under sub-sec. (2) of sec. 337 of the Code and not merely a statement recorded prior to his evidence recorded by the Magistrate as provided in sub-sec. (2) of sec. 337 of the Code. ( 8 ) IT is true that if a statement under sec. 164 of the Code is recorded before he is examined by the Magistrate under sec. 337 (2) of the Code that would be useful from the point of view of defence. It may also serve as a safeguard in order to ascertain the truth or otherwise of the testimony of the accused recorded by the Magistrate under sub-sec. (2) of sec. 337. If the prosecution therefore thinks fit to get a statement recorded under sec. 164 of the Code it would be at liberty to do so. But the prosecution cannot be compelled to get the statement recorded under sec. 164 of the Code before he is actually examined by the Magistrate as provided in sec. 337 (2) of the Code. ( 9 ) IN the result the revision application fails and is rejected. Application dismissed. .