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2004 DIGILAW 26 (CAL)

RAMZAN SK v. STAE OF WEST BENGAL

2004-01-14

P.N.SINHA

body2004
P. N. SINHA, J. ( 1 ) THIS revisional application under Sections 397/401 of the Code of criminal Procedure (hereinafter called the Code) is directed against the order dated 29. 7. 2003 passed by the learned Additional Sessions Judge, Fast Track court No. 1, Alipore in Sessions Trial No. 4 (1) of 2003 thereby allowing the prayer made by accused Saidul Hag Haider @ Kucho for grant of pardon under Section 307 of the Code. ( 2 ) LEARNED advocate for the petitioner contended that the above stated sessions case arose out of Usthi PS. Case No. 106 dated 23. 10. 2002 on the basis of complaint lodged by Janna Bibi, wife of Late Abdul Latif haider. In course of investigation the petitioner was arrested on 25. 10. 2002 and was produced before the learned S. D. J. M. , Diamond Harbour on 26. 10. 2002. After completing investigation police submitted charge-sheet under section 302/34 of the I. PC. against this petitioner and other accused persons. In the charge-sheet 14 witnesses were cited as witnesses for prosecution and out of the said 14 witnesses it was alleged that four (4) were eye witnesses. After commitment to the Court of Sessions the case was transferred to the learned Additional Sessions Judge, Fast Track Court No. 1, alipore for disposal. Charge under Section 302/34 of I. PC. was framed against this petitioner and others and subsequently prosecution has examined as many as seven witnesses during trial. Thereafter, the accused Saidul Haq haider @ Kucho, who was absconding earlier and was not committed by the learned S. D. J. M. , was arrested by police on 18. 7. 2003 and was produced before the learned S. D. J. M. on 19. 7. 2003. The prayer submitted before the learned S. D. J. M. to record confessional statement of said accused under section 164 of the Code was rejected by the learned S. D. J. M, Thereafter, on 21. 7. 2003 the said accused Saidul Haq Haider @ Kucho was produced before the learned trial Court when prosecution submitted a prayer to frame charge against him. The said accused filed a petition praying for tendering him pardon under Section 307 of the Code. After hearing all the parties the learned Judge by order dated 29. 7. 2003 granted pardon to said Saidul Haq haider @ Kucho. The said accused filed a petition praying for tendering him pardon under Section 307 of the Code. After hearing all the parties the learned Judge by order dated 29. 7. 2003 granted pardon to said Saidul Haq haider @ Kucho. ( 3 ) HE contended that granting of pardon to said accused is bad in law and it was totally non application of judicial mind on the part of the learned trial Court. Learned trial Court did not consider that in order to grant pardon under Section 307 of the Code certain conditions are to be fulfilled as laid down in Section 306 of the Code. In the instant case without following the provisions of Section 306 of the Code the learned Trial Judge granted pardon under Section 307 of the Code, which is illegal. Learned Judge failed to appreciate that in the instant case the prosecution has examined seven witnesses and out of the total 14 witnesses there are 4 eye witnesses of the incident. It is not a case where there is no eye witness or cogent evidence to establish the truth or the guilt of the accused and so question of granting pardon does not arise. Learned Judge also did not consider that the prayer of police officer to record statement of said accused was rejected by the learned Magistrate. Subsequently the accused filed a petition himself which was nothing but a product of the investigating agency to arrive at conviction of other accused persons through said Saidul Haq Haider @ Kucho in view of political nature of the murder. Learned Judge granted pardon without recording any statement of the said accused. ( 4 ) HE further contended that in order to tender pardon conditions as embodied in Section 306 of the Code are to be fulfilled. There was no Section 164 of the Code statement before the learned Trial Judge and without Section 164 statement how the learned Trial Judge can come to the conclusion that kucho is making true and full disclosure of the whole of the circumstances within his knowledge relating to the offence. There was no Section 164 of the Code statement before the learned Trial Judge and without Section 164 statement how the learned Trial Judge can come to the conclusion that kucho is making true and full disclosure of the whole of the circumstances within his knowledge relating to the offence. He contended that in order to fulfil the criterion of tendering pardon to a person the said accused must be in custody before commitment and there must be a statement as provided in section 306 (4) of the Code showing true and full disclosure of the whole of the circumstances within knowledge of the said person relating to incident. No copy of such statement was supplied to this petitioner. The order portion of the learned Judge makes it clear that the learned Judge did not follow the provisions of Sections 306 and 307 of the Code and without following the mandatory provisions granted pardon to Saidul Haq Haider @ Kucho. The impugned order passed by the learned Trial Judge dated 29. 7. 2003 is, therefore, illegal and against provisions of law and it should be set aside. In support of his contention he cited the decisions reported in 1995 SCC (Cr) 60, JT (2000)1 SC 593 and 1986 Cr LJ 2104. ( 5 ) MR. Kazi Safiullah, learned Public Prosecutor appearing for the state submitted that in view of provisions of Section 209 of the Code a case is committed to the Court of Sessions and not the accused. Accordingly if after examination of 7 witnesses during trial, pardon is granted to the accused Kucho, there cannot be any illegality, nor it can cause any prejudice to the present petitioner. He contended that when the case was committed to the Court of Sessions and trial is proceeding before the learned Trial judge, it is the learned Judge, who is the best person to assess whether pardon can be granted to the accused Kucho. Before tendering pardon compliance of provisions of Section 306 (4) of the Code are required to be followed as the said provisions are mandatory. Before tendering pardon compliance of provisions of Section 306 (4) of the Code are required to be followed as the said provisions are mandatory. Before tendering pardon to an accomplice the statement of the said person must be recorded in writing otherwise there would be no value and importance of tendering pardon to such person and it would not reveal whether the said person is making true and full disclosure of the whole of the circumstances within his knowledge relating to the offence. The submission of the said accomplice orally before the learned trial Court is not sufficient and something more i. e. statement of said person in writing is required. If the learned Trial Judge did not pass any direction for recording statement of Kucho the order of tendering pardon to him cannot be supported. The order of the learned Judge is not proper as he granted pardon to the accused Saidul Haq Haider @ Kucho without examining him as a witness and recording his statement. Unless the said accomplice is examined as a witness and his statement is recorded grant of pardon would become purposeless, if the said accomplice subsequently retracts and the learned Court in such a situation would not be in a position to judge what materials the said accomplice wanted to disclose. The learned judge may be directed to proceed in accordance with law. In support of his contention he placed a decision reported in 2001 Cr LJ 3993 : 2002 C Cr LR (SC) 195. ( 6 ) I have duly considered the submissions made by the learned advocates for the petitioner and submission made by the learned public prosecutor appearing for the State. I have also gone through the application and its annexures and the decisions placed before me by the learned advocates of the respective parties. To consider the respective contentions of the parties I like to refer the relevant provisions of Sections 306 and 307 of the Code which are as follows :"306. Tender of pardon to accomplice. I have also gone through the application and its annexures and the decisions placed before me by the learned advocates of the respective parties. To consider the respective contentions of the parties I like to refer the relevant provisions of Sections 306 and 307 of the Code which are as follows :"306. Tender of pardon to accomplice. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an 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 requiring into or trying the offence, at any stage of the enquiry or trial, may tender a pardon to such person on condition of his making a full a 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. (2 ). . . . . . . . . (3 ). . . . . . . . . (4) Every person accepting a tender of pardon made under sub-section (1) (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 termination of the trial. (5 ). . . . . . . 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 a pardon on the same condition to such person. " ( 7 ) IN Uravakonda Vijayaraj Paul v. The State and Ors. , reported in 1886 cr LJ 2104 the Andhra Pradesh High Court observed that"order of committal without examining the approver as a witness under Section 306 (4) is illegal. The examination of approver as a witness under Section 306 (4) means it should be done in the manner as provided under Section 138 of the Evidence Act. , reported in 1886 cr LJ 2104 the Andhra Pradesh High Court observed that"order of committal without examining the approver as a witness under Section 306 (4) is illegal. The examination of approver as a witness under Section 306 (4) means it should be done in the manner as provided under Section 138 of the Evidence Act. Section 273 provides that all the evidence taken in the Court should be in the presence of the accused. The provisions of Section 306 (4) for examination of the approver are for the benefit of the accused. Therefore, unless the accused are given an opportunity to cross examine the approver who is examined as a witness, it cannot be said that the mandatory provisions of Section 306 (4) are complied with. " ( 8 ) IN Suresh Chandra Bahri v. State of Bihar reported in 1995 SCC (Cr) 60 the Supreme Court observed that "a bare reading of Clause (a) of sub-section (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. The examination of accomplice or approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. . . . . . . . . . The examination of accomplice or approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. . . . . . . . . . The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with, the evidence of an approver before the committing Court itself at the very threshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provisions is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable. " ( 9 ) IN State of Himachal Pradesh v. Surindar Mohan and Ors. , JT (2000)1 sc 593 : 2000 C Cr LR (SC) 391 it was observed that,"at the stage of investigation, inquiry or trial of the offence, the person to whom pardon is to be granted, is to be examined for collecting the evidence of a person who is directly or indirectly concerned in or privy to an offence. At the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross examine the witness. The right to cross examination would arise only at the time of trial. During the course of investigation by the police, question of cross-examination by the accused does not arise. Further the person to whom pardon is granted, is examined but is not offered for cross-examination and thereafter during trial if he is examined and cross-examined then there is no question of any prejudice caused to the accused. During the course of investigation by the police, question of cross-examination by the accused does not arise. Further the person to whom pardon is granted, is examined but is not offered for cross-examination and thereafter during trial if he is examined and cross-examined then there is no question of any prejudice caused to the accused. " ( 10 ) IN the decision cited by the learned public prosecutor namely jasbir Singh v. Vipin Kr. Jaggi reported in 2001 Cr LJ 3993 the Supreme court observed that, although the power to actually grant the pardon is vested in the Court, obviously the Court can have no interest whatsoever in the outcome nor can it decide for the prosecution whether particular evidence is required or not to ensure the conviction of the accused. That is the prosecution's job. This was the view expressed in Lt. Commander Pascal fernandes v. State of Maharashtra, AIR 1968 SC 594 at p. 599 : 1968 Cr LJ 550, where it was said :". . . . . . . . . . . . . . . . . . . . . . . . . . ORDINARILY it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly applies to the Special Judges he must first refer the request to the prosecution agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interest of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will undubitably agree to the tendering of pardon. If the prosecution thinks that the tender of pardon will be in the interest of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will undubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. " ( 11 ) THE position of law as it stands regarding grant of pardon as enunciated in the aforesaid decisions it is clear that, before granting any pardon to an approve or accomplice his statement as provided in Section 306 (4) of the Code has to be recorded by examining him as a witness. It applies before commitment of the case to the Court of Sessions and provisions of Section 306 (4) of the Code are mandatory. But provisions of section 306 (4) are not attracted in a case which falls under the purview of section 307 of the Code and under the provisions of Section 307 of the Code the Court at any stage before judgment is passed, 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 a pardon on the same condition to such person. It makes clear that as per Section 307 of the code, the Court of Sessions before whom the trial is pending alone has the jurisdiction to grant pardon to an approver or accomplice or accused of that case. It makes clear that as per Section 307 of the code, the Court of Sessions before whom the trial is pending alone has the jurisdiction to grant pardon to an approver or accomplice or accused of that case. ( 12 ) IN the instant case Sardul Haq Haider @ Kucho was absconding at the time of commitment and accordingly, neither the S D J M nor the C J M had any opportunity to examine the said person Kucho as a witness in view of provisions of Section 306 (4) of the Code before granting him pardon In the instant case, the case was committed to the Court of Sessions and this petitioner and four others were facing the trial and seven prosecution witnesses were examined during the trial The accused Kucho was arrested on 18 7 2003 and was produced before the learned S D J M and the prayer of investigating officer to record confessional statements of the said accused under Section 164 of the Code was rejected by the learned S D J M thereafter on 21 7 2003 the said accused Saidul Haq Haider @ Kucho was produced before the learned Trial Judge and the said accused filed a petition praying for tendering him pardon under Section 307 of the Code The learned judge by the impugned order dated 29 7 2003 granted pardon to said Saidul haq Haider @ Kucho. ( 13 ) IT appears from the impugned order that nowhere in the said order it was reilected by the learned Trial Judge that before granting pardon to kucho he was examined as a witness Unless a statement of the said approver is recorded it cannot be ascertained whether the said approver makes a full and trte disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principle or abettor in the commission thereof It has been indicated above that the Supreme Court in Suresh Chandra Bahri's case (supra) observed that the object and purpose of enacting the provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a statement disclosing his evidence at the preliminary stage before committal order is made and the accused not only becomes aware of the evidence against him, but he is also afforded an opportunity to meet with the evidence of the approver before the committing Court itself at the very threshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy The provisions of sub-section (4) of Section 306 of the code are not attracted to a case falling under purview of Section 307 of the code As per Section 307 of the Code the Court of Sessions before whom the trial is pending alone would have jurisdiction to grant pardon to the accused of that case But before granting pardon to an accomplice or approver the Trial Judge has to follow the mandatory provisions of law and can tender a pardon on the same condition to such person as manifestly laid down in section 307 of the Code (Emphasis is mine) The conditions are definitely the conditions that can be found in the preceding Section ( 14 ) IN the instant case it is clear that the learned Judge did not examine the approver and did not comply with the provisions of Section 306 (4) before granting him pardon Examination of approver is important as a safeguard otherwise, if he retracts subsequently, the Court would not be in a position to Judge veracity of his statement made in Court. Therefore, the impugned order passed by the learned Trial Judge, granting pardon to accused Saidul Haq Haider @ Kucho without recording his statement and without being satisfied after going through such statement whether he makes a true and full 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, is bad in law. The impugned order granting pardon to accused Saidul Haq Haider @ Kucho being not in accordance with law is hereby set aside. ( 15 ) THE revisional application accordingly succeeds and disposed of in the light of observations made above. The learned Trial Judge is directed to proceed with the trial of the case in accordance with law. ( 16 ) SEND a copy of the order to the learned Additional Sessions Judge, fast Track Court No. 1, Alipore for information and necessary action.