Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 229 (HP)

ASHOK KUMAR GUPTA v. STATE OF H. P.

2004-09-20

K.C.SOOD

body2004
JUDGMENT K.C. Sood, J.: This petition arises out of the orders of the learned Special Judge, Solan, dated 7th December, 2001. 2. It appears, the petitioner alongwith respondents No. 2 and 3 are facing trial for offences punishable under Sections 409, 420, 467, 468, 471 and 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act III. 3. During the trial, two separate applications were filed by respondents No. 2 and 3, namely, Pushpa Gupta and Radhe Shyam saying that they were willing and ready to make a full and true disclosure of entire circumstances within their knowledge relating to the offences with which they and other co-accused are charged and they be made approvers and granted pardon. The applications were objected by the six of the co-accused including Ashok Kumar Gupta, petitioner herein. The applications, however, were supported by the Public Prosecutor. 4. Learned Special Judge by his impugned orders dated 7th December, 2001 allowed the applications of accused Pushpa Gupta and Radhe Shyam. Both of them were declared to be approvers. They were tendered pardon in respect of their participation in the commission of the offence with which they were facing trial with the following conditions: (1) "The approvers named Smt. Pushpa Gupta and Radhe Shyam shall make full and true account of the whole of the circumstances within their knowledge relating to the offence and every other person concerned whether as principal or as abettor, in the commission of the offence; (2) In case the approvers above are found to have not disclosed the true and correct account of the commission of the offence by remaining accused, they (approvers named above) will make themselves liable to the withdrawal of the tender of the pardon and to be proceeded against as is envisaged under Section 308 Cr.P.C." 5. Dissatisfied with the grant of pardon, Pushpa Gupta, one of the accused, has filed this petition for setting aside the orders granting pardon to Pushpa Gupta and Radhe Shyam. 6. Heard M/s. N.S. Chandel and Rakesh Jaswal, learned Counsel for the petitioner and Mr. Ashok Chaudhary, learned Additional Advocate General. 7. Learned Counsel for the petitioner contends that there in all are nine accused including Pushpa Gupta and Radhe Shyam, respondents. 6. Heard M/s. N.S. Chandel and Rakesh Jaswal, learned Counsel for the petitioner and Mr. Ashok Chaudhary, learned Additional Advocate General. 7. Learned Counsel for the petitioner contends that there in all are nine accused including Pushpa Gupta and Radhe Shyam, respondents. A perusal of police report and the accompanying documents shows that there is already overwhelming evidence, both oral and documentary, "to substantiate the evidence by the prosecution". It is also contended that all the material documents have been "admitted by the accused persons" and therefore, prosecution evidence "is not lacking on any point" and the evidence of approver was not necessary to prove the case. It is further contended that neither in the applications moved by respondents No. 1 and 2 nor in the impugned order it is disclosed as what statement precisely these two respondents will make. If both of them were to make identical statements then only one of them need to be made approver and not both of them. Learned Counsel for the petitioner also submits that it was not open to the learned Special Judge to have received these applications for the grant of pardon under Section 306 of the Code of Criminal Procedure, (hereinafter referred to as the "Code") directly from the accused. It was for the Investigating Agency to move the application if the Agency felt that there was necessity to have the evidence of the approvers for corroborating the prosecution evidence. 8. It is true that before an order is passed under Section 306 of the Code, a Magistrate or the Judge, as the case may be, must know the nature of the evidence the persons praying for pardon is likely to give the nature of complicity of its culpability will not be material. 9. Ordinarily, as pointed out by the Apex Court in Lt. Commander Pascal Femandes v. State of Maharashtra and others, AIR 1968 SC 594, it is for the prosecution to ask that a particular accused, out of many, may be granted pardon. But, however, accused can always directly apply to the concerned Magistrate or the Judge for the grant of conditional pardon. 10. Commander Pascal Femandes v. State of Maharashtra and others, AIR 1968 SC 594, it is for the prosecution to ask that a particular accused, out of many, may be granted pardon. But, however, accused can always directly apply to the concerned Magistrate or the Judge for the grant of conditional pardon. 10. In Pascal Femandes their Lordships observed that where the accused directly applies to the Court for the grant of pardon then the Court must first refer the request to the prosecuting agency The proper course for the Court would be to ask for a statement, where accused directly applies to the Court for the grant of pardon, from the prosecution. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approvers testimony, the Court shall agree to the tendering of pardon. 11. In Pascal Femandes the Special Judge did not consider these aspects while granting the pardon, the Public Prosecutor, however, in the High Court stated that the prosecution considers favourably the tender of pardon to the concerned prisoner. In this view of the matter, the pardon granted by the Special Judge was upheld. 12. In the present case, the prosecution supported the applications of the applicants Pushpa Gupta and Radhe Shyam for the grant of pardon before the trial Judge. Learned Additional Advocate General, supporting the grant of pardon, submits that the grant of pardon to the t two accused at their request would be in the interest of justice and will facilitate the conviction of the other accused. 13. Paramount consideration for the grant of conditional pardon is that the perpetrators of heinous and grave offences may not go unpunished as observed by the Apex Court in Suresh Chandra Bahri v. State of Bihar, 1995 Supp.(1) SCC 80. The object of Section 306 of the Code is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the persons who are granted pardon rest are brought to book and convicted. Their Lordships observed. The object of Section 306 of the Code is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the persons who are granted pardon rest are brought to book and convicted. Their Lordships observed. "The basis of the tender of the pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There is no limitation in the Section 306 of the Code for the grant of pardon. Section 306 of the Code unequivocally provides the grant of pardon to any person believed to be invoked directly or indirectly in or privy to an offence." 14. The contention raised by the learned Counsel for the petitioner that learned trial Judge should have ascertained the extent of complicity of the petitioner before granting pardon is untenable. 15. In the present case as already noticed both the Public Prosecutor before the trial Judge and learned Additional Advocate General before this Court submitted that grant of conditional pardon to both the accused Pushpa Gupta and Radhe Shyam is necessary for the success of the case of the prosecution. 16. Learned Special Judge in his impugned order dated 1st August, 2000 directed the framing of the charge found that accused were prima facie concerned with the misappropriation, forgery, cheating fabrication of evidence and their misconduct themselves being public servants. 17. In the impugned order the learned Special Judge observed that how the offence was committed and amount misappropriated is known to the accused. All of them joined together in misappropriating the funds of Panchayat and "if the applicants are made as approvers by tendering pardon to them, they are likely to disclose the entire sequence of commission of the offence by the remaining accused. The commission of offence and the modus operand adopted by them will come to light from the mouth of these two applicants if they are made approvers and accorded pardon thereafter subjected to the provisions of the law." 18. Learned Special Judge, apparent as it is, granted the pardon to the respondents-accused looking to facts in its entirety and the law applicable in the grant of conditional pardon. 19. Learned Special Judge, apparent as it is, granted the pardon to the respondents-accused looking to facts in its entirety and the law applicable in the grant of conditional pardon. 19. In my view, the order granting pardon to two of the accused is not visited with any illegality or any jurisdictional error. The grant of pardon is within the four corners of law. No interference is called for. Dismissed