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Madhya Pradesh High Court · body

1995 DIGILAW 129 (MP)

Amar v. State of M. P.

1995-01-20

I.P.RAO

body1995
JUDGMENT This revision is filed by the injured complainant and the father of the deceased, challenging the order of the learned Chief Judicial Magistrate, Bhopal treating the non-applicant No. 2 as an approver and granting him pardon u/s. 306 Cr.P.C. The submission of the learned counsel for the applicants is that the statement given by the non-applicant No. 2 being different from the statement given by him to the police u/s. 161 Cr.P.C., the learned Chief Judicial Magistrate ought not to have pardoned the non-applicant No. 2 by his order dated 27.1.1992. The learned counsel for the non-applicant No. 2, relying upon the order of this Court dated 9.7.1992 in Misc. Cr. Case No. 2599/1992, argued that this Court held that the grant of pardon is an issue between the person who becomes an approver and the State and as such the petitioners herein have no locus standi to challenge the impugned order. In Misc. Cr. Case No. 2599 of 1992, the applicant was one Sanjay, alias, Yashwant, alias, Yashu, who is one of the co-accused in the case. The same co-accused namely, Sanjay, challenged the order of granting pardon in a revision, which was dismissed earlier. He sought the interference of this Court once again with respect to the same matter u/s. 482 Cr.P.C. It is under those circumstances that the learned Judge held that the co-accused has no locus standi to challenge the order u/s. 482 Cr.P.C. That decision does not bar the applicants, of whom one is an injured and the other is the father of the complainant, to file this revision. I, therefore, hold that the preliminary objection raised by the learned counsel for the non-applicant No. 2 as to the maintainability of the revision cannot be entertained. I, therefore, hold that the preliminary objection raised by the learned counsel for the non-applicant No. 2 as to the maintainability of the revision cannot be entertained. As regards the merits, the learned counsel for the applicants argued that the statement given by the non-applicant No. 2 u/s. 161 Cr.P.C. is quite at variance with the statement given by him u/s. 164 Cr.P.C. wherein the said non-applicant Arun Kumar Pandey tried to extricate himself from the case and involved the co-accused Ashwani Kumar and Sanjay, alias, Yashwant Inasmuch as, the non-applicant No. 2 has not made a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence, the learned counsel for the applicants submitted that the tender of pardon to him is illegal and is liable to be set-aside. It is no doubt true that in the statement given by the non-applicant No 2, he only stated that he tried to free away; that due to confusion he could not drive the vehicle; that he tried to disengage Ashwani from Yashwant and that he gave a blow. But, the learned counsel for the non-applicant No. 2 argued that the non-applicant No. 2 in his statement recorded u/s. 164 Cr.P.C. spoke to his presence, the dacoity committed by the co-accused and the non-applicant No. 2 receiving a part of the booty in the course of the same transaction. He submitted that the tendering of pardon does not depend upon the satisfaction by the Magistrate that the statement given by the approver represents a true disclosure of facts. On the other hand, the tender of pardon to the approver is on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relative to the offence. In the light of the wording used in section 306 Cr.P.C., the contention of the learned counsel for the applicants that in the absence of a finding by the Magistrate that the statement given by the approver is a full and true disclosure of the facts, no pardon can be tendered to him, cannot be correct. What all the learned Magistrate is expected to do under section-306 Cr.P.C. is to tender a pardon to the approver on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. What all the learned Magistrate is expected to do under section-306 Cr.P.C. is to tender a pardon to the approver on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. The learned Magistrate, before recording the statement u/s. 164 Cr.P.C., has given the requisite warning to the non-applicant No. 2. If ultimately, the Court comes to the conclusion that the non-applicant No. 2 having obtained pardon, has not disclosed the full and true version, what action can be taken against him need not be considered at this stage. The record of the Court below shows that the Magistrate has recorded the statement u/s. 164 Cr.P.C. after following the prescribed procedure and giving the requisite warning to the witness. As rightly submitted by the learned counsel for the non-applicant No. 2, this is not the stage to consider and give a finding whether the statement given by the non-applicant No. 2 is a true version or not. On the other hand, the tendering of pardon is conditional upon the approver making a full and true disclosure of the facts, during the trial of the case. I, therefore, hold that the impugned-order cannot be set-aside. The revision is, therefore, dismissed.