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2005 DIGILAW 213 (CAL)

MADAN MOHAN DUBEY v. STATE

2005-03-28

ASIT KUMAR BISI

body2005
ASIT KUMAR BISI, J. ( 1 ) MR. Sanjoy Chakrabarti, learned Advocate appears for the petitioner. Mr. Swapan Kr. Mallick, learned Advocate appears for the opposite party/ state. None appears on behalf of the other opposite parties. Heard Mr. Chakrabarti for the petitioner and Mr. Mallick for the opposite party/state. ( 2 ) THE instant revision application under Section 401 read with Section 482 of the Code of Criminal Procedure preferred by the petitioner arises out of the order dated 29. 9. 2003 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta, in G. R. Case No. 1709 of 1994 whereby the petitioner's application under Section 306 of the Code of Criminal Procedure for tendering pardon has been rejected. ( 3 ) AFTER hearing the learned Advocates for the petitioner and the opposite party/state and considering the materials on record, I find that the petitioner, Madan Mohan Dubey, who is one of the accused in the case of G. R. Case no. 1709 of 1994 pending before the Court of the learned Metropolitan magistrate, 17th Court, Calcutta, has filed the petition seeking tender of pardon to him under Section 306 of the Code of Criminal Procedure. It appears from the order impugned that one of the accused, Ashok Chakrabarti, opposed the prayer of the present petitioner before the learned Court below contending that such prayer if allowed would cause prejudice to the interest of the other accused persons. The learned Magistrate, however, is of the view that the petitioner has not made full and true disclosure of the fact in the petition and furthermore, the confessional statement of the present petitioner was recorded under Section 164 of Cr. P. C. it further appears from the impugned order that there was no proper clarification of the matter on behalf of the prosecution before the learned Court below. Ultimately, the learned Magistrate has held that if the prayer of the present petitioner-accused, Madan Mohan dubey. is accepted/allowed there is chance of causing prejudice to the remaining three accused persons of this case and the interest of the remaining accused persons can be affected. ( 4 ) MR Chakrabarti on behalf of the petitioner has submitted that other accused persons have no right to participate in the hearing of the application for pardon by one of the accused nor other accused persons have any right to file objection in such case. ( 4 ) MR Chakrabarti on behalf of the petitioner has submitted that other accused persons have no right to participate in the hearing of the application for pardon by one of the accused nor other accused persons have any right to file objection in such case. He has cited the decision in the case of Smt. Tanusree Bose v. The State of W. B. and Ors. reported in 2002 C Cr LR (Cal) 55 in support of his contention. It is no doubt settled law that at the stage of granting of pardon to one of the accused other accused persons cannot have any right to participate in the hearing of the petition filed by one of the accused praying for grant of pardon. The matter relating to consideration of the prayer of an accused for grant of pardon is absolutely a matter between the concerned Court and the concerned seeker of pardon and the Court can ask for a statement/opinion from the prosecution. So, in case of like nature power of granting pardon as contemplated under Section 306 or 307 of the code of Criminal Procedure, as the case may be, should be exercised sparingly in appropriate cases and the prosecution in such event must show impartiality to unearth the crime. ( 5 ) MR. Mallick on behalf of the State/opposite party in his usual fairness has conceded this legal position. It appears from the impugned order of the learned Magistrate that in the instant case the prosecution supported the prayer of the accused, Madan Mohan Dubey. Such should not be the stand of the prosecuting agency when law casts onerous duty on them to proceed in an impartial manner without causing prejudice. In the matter of granting pardon supporting of prayer of one of the accused seeking tender of pardon by the prosecuting agency is not permissible in legal arena. It. is for the Court to decide whether reasoned opinion of the prosecutor would be needed to arrive at a decision regarding granting of pardon to a particular accused. In the instant case, I find that no proper clarification was sought from the prosecuting agency in the matter of granting pardon to the particular accused. It. is for the Court to decide whether reasoned opinion of the prosecutor would be needed to arrive at a decision regarding granting of pardon to a particular accused. In the instant case, I find that no proper clarification was sought from the prosecuting agency in the matter of granting pardon to the particular accused. If such clarification is lacking, the Court can very well ask the prosecutor to submit specific opinion setting both the reasons so that it can be decided by the Court whether or not such pardon as sought by one of the accused can be granted. As mentioned hereinbefore, the learned Metropolitan Magistrate disallowed the prayer of the petitioner for granting pardon solely on the ground that such prayer will cause prejudice to the remaining other accused persons, who, as it appears, were allowed to participate in the matter of hearing of the petition for tendering pardon. Such course of action of the learned Magistrate is not warranted by law and that is evidently more so, in view of ratio of the decision in the case of Smt. Tanusree Bose (supra ). ( 6 ) HAVING regard to the above materials on record and the principles of law enunciated above, I am clearly of the view that the impugned order passed by the learned Metropolitan Magistrate, 17th Court, Calcutta, is not sustainable in the eye of the law. The impugned order is set aside. ( 7 ) THE learned Metropolitan Magistrate, 17th Court, Calcutta, is directed to obtain specific opinion from the prosecutor who is in-charge of this case and after obtaining such specific opinion, the learned Metropolitan magistrate will consider the petition filed by the present petitioner praying for grant of pardon afresh on proper consideration in the light of my above observations and according to law and dispose of the same as early as possible. ( 8 ) THE present revision application is allowed to the extent indicated above. ( 9 ) LET a copy of this order be sent down to the learned Court below forthwith.