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2011 DIGILAW 2199 (HP)

Surinder Malhotra v. State of H. P.

2011-06-01

DEV DARSHAN SUD

body2011
JUDGMENT Dev Darshan Sud, J. The petitioner herein challenges the order passed by the learned Special Judge on 16.2.2011 on application under Section 307 Cr.P.C. declining the prayer made by the petitioner herein for being granted pardon and application under Section 306 Cr.P.C. on the same set of facts. 2. The petitioner herein stands charged in FIR No.2/2008 for offences under Sections 420, 468, 471, 201 read with Section 120-B IPC and Section 13(2) of Prevention of Corruption Act, 1988. The application has been rejected by the learned trial Judge only on the ground that the record does not disclose reasons for tender of pardon. There is non application of mind by the prosecution. Learned Court holds that there is only a bald statement of `No Objection’ by the State which is not sufficient for grant of pardon. The petitioner challenges this decision. 3. The application has been resisted by the respondents on a number of grounds. I am not adverting to the merits of the submissions made as I find that the two applications have been rejected only on hyper-technical grounds. A submission was made before the learned Court on 16.2.2011 that the application under Section 306 Cr.P.C. was not maintainable as those powers can be exercised only by a committing Magistrate. It was argued that the powers under Section 307 Cr.P.C. also cannot be exercised and it is Section 13(2) of the Prevention of Corruption Act which is applicable. I concur with the reasoning of the learned Special Judge to the extent that it holds that mere nomenclature of the application in mentioning the wrong Section is not sufficient to reject an application. However, what I find is that the powers under Section 5(2) of the Prevention of Corruption Act vest the same powers in the Court as Section. 4. Adverting to the record on the substantive ground of rejection, there is substance in what the learned Judge holds that the prosecution has not seriously applied its mind and disclosed reasons for acceptance of the pardon. 5. In reply to the application under Section 306 Cr.P.C., the Deputy Superintendent of Police has filed a document running into three pages in Hindi which only narrates the facts and then states in one line that it has no objection in case pardon is granted. 6. 5. In reply to the application under Section 306 Cr.P.C., the Deputy Superintendent of Police has filed a document running into three pages in Hindi which only narrates the facts and then states in one line that it has no objection in case pardon is granted. 6. In Al-Saleha Beig vs. State, 2008 Cri.L.J.1500, the Court relying upon two decisions of the Supreme Court, namely, Lt.Commander Pascal Fernandes vs. State of Maharashtra and Others, AIR 1968 SC 594 and Jasbir Singh vs. Vipin Kumar Jaggi and Others, AIR 2001 SC 2734, holds that it is for the prosecution to place on record their approval for grant of pardon accompanied by some reasons. I, therefore, do not find any reason to interfere with the findings of the learned Special Judge. This revision petition is, therefore, disposed of with the directions that:- (a) it will be open to the petitioner herein to petition before the learned trial Court afresh for grant of pardon in accordance with Section 5(2) of the Prevention of Corruption Act; (b) the disposal of the present revision petition shall not be a bar for consideration of such application which is filed; (c) this petition does not decide the merits of the case; (d) if such an application is filed, it shall be disposed of by the learned trial Court in accordance with law. Record of the trial Court be sent back immediately.