RAMAN S. v. STATE OF KARNATAKA — 1978 DIGILAW 104 (KAR)

( 1 ) THE petitioner S. Raman, in the Criminal Revision Petition No. 267 of 1976 is the 8th accused in Sessions Case No. 21 of 1975 on the file of the iii Additional Sessions Judge, Bangalore City. He has filed this revision petition assailing the conectness and legality of the order of the Sessions judge dated 9-4-1976 granting pardon to A-4 Natarajan and A-9 Keerthivasna. ( 2 ) THE facts leading up to the filing of this revision petition may be stated as follows: the Corps of Detectives, Bangalore, placed a charge-sheet against 14 accused persons including the revision petitioner before the Metropolitan magistrate, VI Court, Bangalore for offences punishable under Ss. 419, 420, 467, 468, 471, 472, 409; 411 and 489a IPC and Ss. 52 and 70 of the Post office Act read with S. 120-B of the IPC on the allegations that all 14 accused persons between 23-8-1971 and 21-10-1971 at Bangalore, Madras, madurai, Melur, Tuticorn, Trivandrum, Thiruchirapalli and Coimbatore entered into a criminal conspiracy, the common design being to cheat the state Bank of India, Bangalore City and Bangalore Cantonment Branches by opening current accounts in the names of fictitious persons, obtaining cheque books and pay-in-slip books from the Bank to operate the accounts in the names of false and fictitious persons, counterfeiting mail transfer blank forms of the Bank by getting them printed on the strength of the stolen genuine mail transfer advice forms of the bank, forging huge amounts on the faked and counterfeit mail transfer advice forms and the list ot originating credit forms by writing names of false and fictitious persons as remitters and also writing the names of false and fictitious persons as beneficiaries in whose names the current accounts were opened in the State Bank of India branches in Bangalore and by drawing the amounts mentioned in the forged and counterfeit mail transfer advice forms through cheques alter such amounts were transferred to their accounts ih the Bank and cheated the Bank to the tune of over Rs. 2 lakhs ( 3 ) THE case was received in the court of the Sessions Judge, Bangalore metropolitan area on commitment and taken on file in SC. No. 21 of 1975. Accused Nos. 1, 2 and 4 to 13 were on bail and accused NOS. 3 and 14 were in judicial custody at the time of the commitment. 2 lakhs ( 3 ) THE case was received in the court of the Sessions Judge, Bangalore metropolitan area on commitment and taken on file in SC. No. 21 of 1975. Accused Nos. 1, 2 and 4 to 13 were on bail and accused NOS. 3 and 14 were in judicial custody at the time of the commitment. Soon after the commitment of the case, the Public Prosecutor filed an application on 1-3-1975 under S. 307 Cr. PC. for tendering pardon A-4 Natarajan and A-9 keerthivasan who were accomplices and have confessed before the Tahsidar-Magistrate giving full and true disclosure of the whole of the circumstances which were within their knowledge relating to the offences and the persons concerned in the case with a view to obtain their evidence at the trial of the case in which they have directly and indirectly concerned. Issue of summons, to A4 and A9 was ordered returnable by 5-8-1975. On 5-8-1975 both A-4 and A-9 appeared in pursuance of the summons issued to them. Both of them filed separate applications under S. 307 cr. PC. requesting to grant pardon to them as they were ready and willing to become approvers and were prepared to make full and true disclosure if the whole of the circumstances within their knowledge relating to the offences and every other person concerned as principal or abettor in the commission thereof. ( 4 ) THE learned Sessions Judge, as per his Order dated 23-10-1975 allowed all the three applications and tendered conditional pardon to A-4 and A-9 on their making a true and full disclosure of the whole of the circumstances within their knowledge relating to the offences in the case and to every other accused concerned as principal or abettor in the commission thereof by giving evidence in the case. The petitioner herein challenged the said order in Cr. P. No. 448 of 1975 before this court. This court by its order dated 2-12-1975 set aside the order of the court below dated 23-10-1975 and remanded the matter for fresh disposal in accordance with law after the petitioner and the other accused persons were given an, opportunity of being heard. The petitioner herein challenged the said order in Cr. P. No. 448 of 1975 before this court. This court by its order dated 2-12-1975 set aside the order of the court below dated 23-10-1975 and remanded the matter for fresh disposal in accordance with law after the petitioner and the other accused persons were given an, opportunity of being heard. After the case was received in the Court below, the learned sessions Judge heard the matter in the presence of the petitioner as well as the other accused and made the order dated 9-4-1976 which is under challenge in this revision petition allowing the applications filed by the state as well as A-4 and A-9 and granting conditional pardon to them on the same terms as before. ( 5 ) DURING the pendency of this revision petition, the revision petitioner also filed Cr. P. No. 314 of 1977 under S. 451 read with S. 482 Cr. PC for the return of a bicycle seized from him and produced in SC. No. 21 of 1975 by way of interim custody on condition that he would produce it whenever called upon to do so. This court as per the order dated 8-8-1977 directed that the said petition shall be disposed of along with the revision petition. ( 6 ) SMT. Karpagam Kamath, learned Counsel appearing for the Revn. Petnr. has raised three contentions: (1) Proper opportunity was not given to the petitioner and the other accused of being heard in the matter before the order under challenge was made. (2) The order in question is illegal and invalid as it does no'l bear out that the accused to whom pardon was tendered have accepted the same; and (3) A-4 and A-9 are the principal offenders and as such they are not the proper persons to whom pardon should be tendered; even otherwise, there is other evidence on which the prosecution could sustain its case and so there was no need to tender pardon to them. ( 7 ) THE learned High Court Government Pleader appearing for the state supported the order of the Court below. According to him, the older under challenge fully bears out that the petitioner and the other accused were afforded reasonable opportunity and in fact they did participate in the proceedings before the court below. The scheme of S. 306 cr. PC. According to him, the older under challenge fully bears out that the petitioner and the other accused were afforded reasonable opportunity and in fact they did participate in the proceedings before the court below. The scheme of S. 306 cr. PC. clearly shows that the recording of the fact whether tender of pardon was accepted by the persons to whom it was made in the order granting pardon is not a condition precedent for validating the tender a--4 and A-9 are not the principal offenders as per the allegations made against them and the evidence collected during the investigation; they did some act in pursuance of the criminal conspiracy, and there is no direct witnesses for the charge of criminal conspiracy other than the person to whom the pardon was tendered. So, the order of the learned Sessions judge is unassailable. ( 8 ) NOW coming to the first contention raised, it was not argued by smt. Karpagam Kamath, learned Counsel for the revision petitioner that the revision petitioner and the other accused were not heard in the matter before making the impugned order. The only exception taken on behalf of the revision petitioner to contend that proper opportunity was not given to him and the other accused is that the copies of the applications filed by a-4 and A-9 under S. 307 Cr. PC. , 1973 (for short the 'new Code') were not furnished to the petitioner and the other accused. ( 9 ) IT is seen from paragraphs 5 and 6 of the impugned order that after the matter was remanded to the court below, all the three applications filed under S. 307 of the new Code-one by the State and the other two by A-4 and A-9 were considered together. All the accused were furnished with copies of the application filed by the State. All the accused including the revision petitioner were represented by different counsel. Some of the 'accused have filed objections. All the accused including the revision petitioner, were heard in the matter. Thereupon, the learned Sessions- Judge made a common order now impugned on all the three applications granting conditional pardon to A-4 and A-9. ( 10 ) THE correctness of these statements of fact contained in the impugned order has not been challenged on behalf of the revision petitioner. All the accused including the revision petitioner, were heard in the matter. Thereupon, the learned Sessions- Judge made a common order now impugned on all the three applications granting conditional pardon to A-4 and A-9. ( 10 ) THE correctness of these statements of fact contained in the impugned order has not been challenged on behalf of the revision petitioner. On the other hand, it was the admitted case of the petitioner that the impugned order was made in his presence and also in the presence of the other accused. AS stated earlier, the only grievance of the revision petitioner was that he and the other accused were not furnished with the copies of the applications filed by A-4 and A-9 under S. 307 of the new code for tendering pardon, to them. Even assuming that the copies of those applications were not furnished to the petitioner and the other accused, it would not, in my opinion, amourft to denial of proper opportunity to the petitioner and the other accused of being heard in the matter specially when all the accused were furnished with the copies of the application filed by the State under S. 307 of the new Code and heard in the matter before conditional pardon was tendered to A-4 and A-9. The grievance of the petitioner that he and the other accused were not supplied with the copies of the applications filed by A4 and A9 and thereby deprived them of the proper opportunity of being heard is stated to be rejected being too technical. For the reasons aforesaid, I see no force in the first contention urged for the petitioner. ( 11 ) IT is n6w necessary to refer to the material provisions of the new code, Ss. 306 to 308 occurring in Chapter XXIV of the new Code unde the Head "general Provision as to Inquiries and Trials" are the provisions dealing with the topic of tendering pardon and prosecution of the person accepting the tender and failing to comply with the cond tions of pardon granted. Though Sec. 306 is the relevant section, nevertheless it is necessury to refer to Sec. 307 also. The material portions of these sections relevant for our purpose are as follows :" 306. Though Sec. 306 is the relevant section, nevertheless it is necessury to refer to Sec. 307 also. The material portions of these sections relevant for our purpose are as follows :" 306. Tender of pardon to accomplice; _ (l) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in for privy to any offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan 'magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may 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' relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof. (2) This section applies to. _ (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law amendment Act, 1952, (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence; (3) Every Magistrate who tenders a pardon under sub-sec (1) shall record. _ (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it Was made, and sfiall, on application made by the accused, furnish, him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-stction (l ). _ (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall unless he is already on bail, be detained in custody until the determination of the trial. * * * * * 307. Power to direct tender of pardon. _at any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender pardon on the same condition to such person. _at any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender pardon on the same condition to such person. " ( 12 ) IT is manifest from a plain reading of Sec. 306 (1) of the new code that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence of the class referred to in sub-sec (2) of Sec. 306, any of the Magistrates referred to in sub-sec (1) may 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 relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof. It is clear from the said provision that wha,t the Magistrate is authorised to tender under sub-sec (1) is a conditional pardon, the condition being of making a full and true disclosure of the whole of the circumstances within the knowledge of such person relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof. Then follows sub-sec (3) which stipulates that every magistrate who tenders a pardon under sub-sec (1) shall record two things in his order viz, (1) the reasons for granting pardon and (2) whether the tender was or was not accepted by the person to whom it was made. It further provides that the Magistrate shall, on application made by the accused, furnish a copy of such record free of cost. ( 13 ) CLAUSE (B) of sub-sec (3) of Sec. 306 is a new provision added in the new Code. The corresponding provision to sub-sec (3) of Sec. 306 of the new Code in the Code of Criminal Procedure, 1898 (shortly called the old Code was sub-sec (1a) of Sec. 337. ( 13 ) CLAUSE (B) of sub-sec (3) of Sec. 306 is a new provision added in the new Code. The corresponding provision to sub-sec (3) of Sec. 306 of the new Code in the Code of Criminal Procedure, 1898 (shortly called the old Code was sub-sec (1a) of Sec. 337. It rdads thus :" 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 : provided that the accused shall pay for the same unless the magistrate for some special reason thinks fit to furnish it free of cost. "unlike sub-sec (3) of Sec. 306 of the new Code, the Magistrate who was tendering a pardon under sub-sec (1) of Sec. 337 of the old Code was required under sub-sec (1a) only to record his reasons for granting pardon. There was no obligation on his part to record whether the tender was or was not accepted by the person to whom it was made. ( 14 ) THE scope of Sec. 337 (1a) of the old Code has been the subject-matter of judicial review in a number of cases. In Bawa Faqir Singh v. Emperor, AIR. 1938 PC. 266. the scope of sub-sec (1a) of Sec. 337 of the old Code came up for consideration. A pointwas canvassed before their Lordships of the privy Council that failure to record the reasons for granting a pardon by the Magistrate would invalidate the tender of pardon. Repelling the said contention, the Privy Council observed as follows:" It is sjaid that the Magistrate has not recorded his reasons as required by sub-sec (1a ). But that is merely an irregularity on the part of the Magistrate. The right of the accused or the approver cannot be affected because the Magistrate has failed to comply with the requirement imposed for the benefit of the accused. "a same view was reiterated by a Division Bench of the Chief Court of sind in emperor v. Pir Imamshah, AIR. 1944 Sind 184. following the Privy Council's decision faquir Singh's case (1) thus :" There is no doubt, then, in our opinion, that the District Magistrate did lawfully tender, as he was empowered to do, a pardon to the accused, on the condition set out in Sec. 337, Crlpc. 1944 Sind 184. following the Privy Council's decision faquir Singh's case (1) thus :" There is no doubt, then, in our opinion, that the District Magistrate did lawfully tender, as he was empowered to do, a pardon to the accused, on the condition set out in Sec. 337, Crlpc. The tact that the District Magistrate did not recoid his reasons for so doing, does not invalidate a lawful tender of the pardon. This is a provision in favour of the accused, and the Privy Council has held in 32 SLR. 937 at page 945 (equivalent to AIR 1938 PC. 266) that the failure of the magistrate to record his reasons for the tender of pardon does, not invalidate the tender, where the Magistrate has failed to do something which is for the benefit of the accused and his failure to do so cannot' be to the disadvantage of the accused. " ( 15 ) IN state of U. P. v. Kailash Nath Agarwal, 1973 Crllj, 1196. a question came up eiore the Supreme Court whether an order granting pardon under S. 337 r 338 of the old Code is revisable. Answering the questions in the affirmtive, his lordship Vaidialingam, J speaking for the Bench observed thus :" In our opinion, an order granting pardon under Sec. 337 or 338 as certainly an order recorded or passed and the revisional Court has got jurisdiction to consider the correctness, legality or propriety of such an order. At any rate, tender of pardon is certainly a proceeding of a Criminal Court. The revising authority can call for the records to Satisfy itself as to the regularity of any proceedings of an inferior Criminal Court. It should also be noted that sub-sec (1a) of sec. 337 imposes an obligation on the Magistrate tendering pardon to record his reasons for so doing. Whether a revisional authority will interfere with the order of an inferior Criminal Court tendering pardon is altogether a different matter. That does not mean that a revisional court has no jurisdiction to entertain a revision against an order granting pardon. " ( 16 ) THE last decision cited before me on the scope of sub-sec (1a) of sec. 337 of the Code is the decision in prabhat Ranjon Sankar v. State of Bihar, 1974 Crllj. 957. That does not mean that a revisional court has no jurisdiction to entertain a revision against an order granting pardon. " ( 16 ) THE last decision cited before me on the scope of sub-sec (1a) of sec. 337 of the Code is the decision in prabhat Ranjon Sankar v. State of Bihar, 1974 Crllj. 957. The relevant portion found at page 958 reads thus :" The other contention of the learned Counsel for the petitioners is that the impugned order of the District Magisrate is illegal because he failed to record his reasons while granting pardon. In the above mentioned case, the Supreme Court held that sub-sec (1a) of S. 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-sec (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. " ( 17 ) PLACING strong reliance on the above decision in P. R. Sanker's case (4), Smt. Karpagam Kamath, learned Counsel for the petitioner, contended that the impugned order is liable to be stet aside because the learned Sessions Judge has failed to record while granting pardon to a4 and A9 that they have accepted the pardon. This, according to her, was in clear violation of the mandatory provision of Clause (b) of sub-sec (3) of Section 306 of the new Code. ( 18 ) IT is no doubt true that the learned single Judge in P. R. Sarkar's case (4) has held that sub-sec. (1a) of Sec. 337 of the old Code is a mandatory provision and failure to recordi reasons for granting pardon would make the tender invalid. It appears from the judgment of. ( 18 ) IT is no doubt true that the learned single Judge in P. R. Sarkar's case (4) has held that sub-sec. (1a) of Sec. 337 of the old Code is a mandatory provision and failure to recordi reasons for granting pardon would make the tender invalid. It appears from the judgment of. the Patna high Court in P. R. Sarkar's case (4) that the learned single judge, for reaching such a conclusion sought reliance on the observations of the supreme Court in state of U. P. v. Kailashnath (3) that sub-sec (1a)of S. 337 of the old Code imposes an obligation on the Magistrate tendering pardon to record his reasons for so doing. It is clear from the above decision that the supreme Court did not consider the effect of failure to record reasons as required under sub-sec (1a) of Sec. 337 of the old Code on the validity or otherwise of the order granting pardon. Dealing with the question whether the order granting pardon is revisabe or not, the Supreme Court made the observation that sub-sec (1a) of Sec. 337 imposes an obligation on the Magistrate to record his reasons for so doing in support of its conculsion that the order granting pardon is a revisable order. The question whether an order granting pardon would become invalid on, the failure to record reasons for granting pardon did not directly arise for consideration before the Supreme Court in the above decision. The learned single judge of the Patna High Court, after referring to the observation of the supreme Court in the above decision that sub-sec (1a) of Sec. 337 of the code makes it obligatory on the part of the Magistrate tendering pardon to record his reasons for so doing, proceeded further to observe that sub-sec (1a) of Sec. 337 of the old Code a mandatory provision and failure to record the reasons would make the order not a ' speaking order' and thus the order would become invalid. The rulings of the Privy Council in Faqir Singh's case (1) and the Bench decision of the1 Chief Court of Sind in Emperor v. Pir Imamshah (2), appeared to have been not placed before the le'arned Judge in P. R. Sarkar's case (4 ). The rulings of the Privy Council in Faqir Singh's case (1) and the Bench decision of the1 Chief Court of Sind in Emperor v. Pir Imamshah (2), appeared to have been not placed before the le'arned Judge in P. R. Sarkar's case (4 ). They are the direct authorities on the question that failure to record the reasons while granting pardon would not tender the tender of pardon invalid if the tender of pardon is otherwise valid and in accordance with law. ( 19 ) NOW, I shall proceed to consider the requirements of a valid tender of pardon. The language of Sec. 306 is very plain on this aspect. The object of tendering pardon is to obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which Sec. 306 of the new Code applies. The Magistrate referred to therein are empowered to 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 relative to the offence and to every other person concerned whether as principal Or abettor in the commission thereof. Sub-sec (2) stipulates the clas? of offences in which tender of pardon may be made. Sub-sec (3) contemplates recording of reasons for tendering pardon and whether the tender was accepted or not by the person te whom the tender was made. Sub-section (4) provides for examination of the person who has accepted the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. A combined reading of these provision's is indicative of the fact that tender of pardon is allowed in the case of specified offences, that the tender should be on condition of making a full and true disclosure of the whole of the circumstances within the knowledge of the person to whom the tender is made relative to the offence and also to every other person, concerned whether as principal or abettor in the commission thereof, that it must be in writing and the tender of pardon must be accepted by the person to whom the tender is made. If these conditions are fulfilled in a given case, the tender of pardon would become effective and complete and the provisions of sub-secs (4) and (5) of Sees. 306 and 308 of the new code would come into play. Sub-sec (1) of Sec. 306 under which the power of granting pardon is conferred upon the Magistrates referred to therein does not indicate that the tender of pardon should. be in writing. However, sub-sec (3) which provides for an obligation on the part of the magistrate tendering pardon under sub-sec (1), to record his reasons for granting pardon and also whether the tender was or was not accepted by the person to whom it was made is indicative of the fact that the tender of pardon will have to be in writing. ( 20 ) THE tender of pardon would become complete if two conditions are satisfied. They are: (1) the tender of pardon by the Magistrate should be in conformity with the conditions laid down in sub-sec. (1) of S. 306 m lespect of the offences to which S. 306 would be applicable; and (2) the acceptance of the tender by the person to whom the tender is made. The acceptance of the tender by the person to whom it is made may be during the proceedings in which the tender is made or subsequent to the tender of pardon is made before he is examined as a witness as contemplated under sub-Sec. (4 ). It cannot, I think, be said that the accused must accept the tender in writing. If the accused himself has filed an application for tendering pardon on the basis of which tender is made or as a issue of the tender made to him on the basis of an application filed by the state, he gives evidence or expresses his willingness to give evidence or even signifies his acceptance by making statement after the tender was made, it would constitute good evidence of acceptance of tender and as a result of which the tender of pardon would become complete. The mere fact that the Magistrate who tenders pardon has failed to record in the order of tendering pardon that the accused to whom the tender is made, has accepted the tender or not, would not, in my opinion, invalidate the tender of pardon if it is otherwise valid in law as indicated above. The mere fact that the Magistrate who tenders pardon has failed to record in the order of tendering pardon that the accused to whom the tender is made, has accepted the tender or not, would not, in my opinion, invalidate the tender of pardon if it is otherwise valid in law as indicated above. It would only amount to an irregularity and not an illegality. ( 21 ) TO reach this conclusion, I have sought assistance from the rullings in Faqir Singh's case (1) and Emperor v. Pir Imamshah's case (2 ). No contrary ruling of the Supreme Court or of this court on the subject has been brought to my notice. Therefore, with respect, I am unable to agree with the view taken by the Patna High Court in P. R. Sankar's case (4 ). In the light of the legal position discussed 'above, it follows that the impugned order would not become invalid for failure to record that a-4 and A-9 have accepted the tender of pardon. There is clear evidence on lecord to hold that A-4 and A-9 have accepted the tender of pardon. It is borne out from the record that the proceedings for tendering pardon to A-4 and A-9 was initiated on an application dated 1-8-1975 filed by the state. A-4 and A-9 appeared before the court in pursuance of the summons issued to them on 'the said application. On the day they appeared which was on 5-8-1975, both A-4 and A-9 moved the Sessions Judge through separate applications under S 307 of the new Code for tendering pardon to them. The learned Sessions Judge passed the impugned common order on all the three applications allowing the applications and granting pardon to A-4 and A-9. Jn the face of these materials, it is futile for the petitioner to contend that failure to record specifically in the impugned order that A-4 and A-9 have accepted the tender of pardon would invalidate the tender. ( 22 ) THIS takes me to the last contention urged on behalf of the petitioner. It was argued that A-4 and A-9 are not the proper persons to whom pardon should be tendered as they are the principal-offenders and even otherwise, there was no need to tender pardon to them as there is other evidence on which the prosecution could sustain its case. It was argued that A-4 and A-9 are not the proper persons to whom pardon should be tendered as they are the principal-offenders and even otherwise, there was no need to tender pardon to them as there is other evidence on which the prosecution could sustain its case. ( 23 ) THIS court in kashinath Krishna Bapat v. State of Mysore, 1962 Myslj. 995 dealing with the proper exercise of the power to tender pardon observed as follows :"the exercise of the power to tender pardon rests on judicial discretion and the Magistrate or the Judge should proceed with great caution and on sufficient grounds, recognising the risk which the grant of pardon involves of allowing an offender to escape just punishment at the expense of the other accused. "on the same question, the Supreme Court in lt. Commander pascal fernandes v. State of Maharashtra, 1968 Crl. L. J. . 550 observed thus: "the next question is whether the special Judge acted with due propriety in his jurisdiction. Here the interests of the accused are just as important as those of the prosecution. No procedure or action, can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider. Before the Spl Judge acts to tender pardon, he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused. What is meant by public policy is illustrated by a case from Public Commission Court (Reg. V. Robert Dune (1851) 5 Coxl Cr. Care 507) in which Torrens, J on behalf of himself and Perrin, J, observed as follows:"from what I can see of this case, this witness Bryan, who has been admitted as an approver by the Crown is much the more criminal of the two on his own showing. . . . . . . . Care 507) in which Torrens, J on behalf of himself and Perrin, J, observed as follows:"from what I can see of this case, this witness Bryan, who has been admitted as an approver by the Crown is much the more criminal of the two on his own showing. . . . . . . . I regret that this ' witness, Bryan, has been admitted as evidence for the crown and thus escaped being placed upon his trial It is the duty of Magistrates to be very cautious as to whom they admit to give evidence as approvers, and they should carefully inquire to what extent the approver is mixed up with the transaction, and if he be an accomplice into the extent of his guilt. . . . . . " ( 24 ) THE reasons given by the learned Sessions Judge in the impugned order for tendering pardon to A4 and A9, if scrutinised in the light of the principles enunciated in the above-quoted decisions, with reference to the evidence collected in the case by the investigating agency and the allegations made against A4 and A9, I am convinced that the learned Sessions Judge was justified in tendering pardon to A-4 and A-9 as their evidence, in my view, is absolutely necessary for the prosecution to prove the case against the other accused. ( 25 ) ONE of the charges levelled against the accused is one of conspiracy. There is no direct evidence collected during the investigation to prove the charge of conspiracy. The conspiracy, according to the prosecution, was to cheat the State Bank of India branches at Cantonment and bangalore City by opening current accounts in those branches in the names of fictitious persons, counterfeiting mail transfer bank forms of the bank getting them printed on the strength of stolen genuine mail transfer advice forms of the bank, forging huge amounts on the faked and counterfeit mail transfer advice form and the list of originating credit forms by writing names of false and, fictitious persons as beneficiaries and by drawing amount mentioned in the forged land counterfeit mail transfer advice forms through cheques after such amounts were transferred to the accounts in the bank standing in the names of false and fictitious persons and cheated the bank to the tune of ovfr Rs. two lakhs. two lakhs. A-4 Natarajan appears to have come in contact with A-5 Gopalan and later he appears to have come in contact with A-1 James and the other accused. In pursuance of the criminal conspiracy, A-4 appears to have got prepared counterfeit rubberel amps and also got printed blank counterfeit mail transfer advicei forms af the State Bank of India which were later, used for commission of the offence of cheating. The further allegation against A-4 Natarajan is that he had approached CW. 2 Natarajan at Bangalore and through him got opened the current accounts in the names of fictitious persons in the Bangalore city and Cantonment Branches of the State Bank of India. The allegations against A-9 Keerthivasan is that he had forged the signatures on the mail transfer advice forms at the instance of some of the accused. Both A-4 and A-9 have made their confessional statements before the tahsildar-Magistrate wherein they have clearly confessed without any hesitation to the various acts committed by them as well as by the other accused persons in the commission of the offences in question. They have narrated the entire facts relating to the alleged criminal conspiracy right from its inception till the final achievement. They have voluntarily come forward by means of separate applications that they are ready and willing to make a full and true disclosure of the whole of the circumstances within their knowledge relating to the offences in the case. From the material collected during the investigation, it seems to me that A-4 land A-9 cannot be termed as principal offenders. There is no other direct evidence collected by the prosecution to speak to the charge of conspiracy fas a whole. Thus, both the legs of the last contention urged on behalf of the petitioner are liable to crumble being brittle and fragile. For the afore- said reasons, I reject this contention also. ( 26 ) MOREOVER, the power of tendering pardon is a discretionary power vested with the authorities empowered to tender pardon. The Sessions judge is empowered to tender pardon in a case received by him on commitment under S. 307 on the same conditions as provided in S. 306 of the new Code. Normally this Court will not interfere with the exercise of the power of tendering pardon. The Sessions judge is empowered to tender pardon in a case received by him on commitment under S. 307 on the same conditions as provided in S. 306 of the new Code. Normally this Court will not interfere with the exercise of the power of tendering pardon. It is sufficient to say that I am not satisfied that this is a case where I should interfere with the tender of pardon. The result being the revision petition should fail. ( 27 ) NOW coming to the Cr. p. No. 314 of 1977, it appears to me that it is appropriate for the petitioner to approach the Sessions Court for the relief sought for as the sessions court would be the proper court to deal with the question of interim custody of the property produced in the case pending before it. ( 28 ) IN the result, for the foregoing reasons, both the petitions fail and they are dismissed reserving liberty to the petitioner to move the sessions court for the interim custody of the bicycle seized in this case. --- *** --- .