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2014 DIGILAW 219 (HP)

Dilesh Kumar v. Central Bureau of Investigation

2014-03-19

RAJIV SHARMA

body2014
JUDGMENT : - Rajiv Sharma, Judge. Since common questions of law and facts are involved in both the petitions, the same were taken up together for hearing and are being disposed of by a common judgment. 2. These petitions have been directed against the orders dated 24.10.2013 passed by the Chief Judicial Magistrate, Shimla in case Nos. 2-2 of 2013 and 61-2 of 2012, respectively, titled C.B.I. vs. Rajesh Thakur whereby applications filed by respondent No.2 in case No.2-2/13 and respondents No. 3 in case No. 61-2/13 under section 306 of the Code of Criminal Procedure have been allowed and they have been pardoned. They have been made approvers. 3. A complaint was filed by one Sh. Ved Prakash that there was gross criminal violations of the norms and guidelines of NCTE for grant of additional seats of Degree College of Education, Dhaliara, District Kangra. In sequel thereto, FIR No. 0962011A0002 dated 8.3.2011 for offences punishable under sections 420, 467, 468 and 471 read with section 120-B of the Indian Penal Code was registered. Respondent No.2 in case No. 2-2 of 2013 and respondent No.3 in case No. 61-2 of 2013 were also arrayed as co-accused in the FIR. Statement of complainant under section 164 of the Code of Criminal Procedure was also recorded. Respondent Nos. 2 and 3 have prayed for pardon. They have undertaken to make full and true disclosure of whole of circumstances within their knowledge related to offence. They had also contended that no prejudice would be caused to Investigating Agency in case they are granted pardon. According to them, no undue pressure, influence, inducement, threat has been advanced to them for preferring these applications. These applications have been made by them out of free will and satisfaction after understanding the entire consequences connected with the grant of pardon and proceedings which may follow thereafter. The applications were supported by an affidavit. 4. Learned Chief Judicial Magistrate has rightly come to the conclusion that in case applicants are pardoned, it will facilitate the conviction of other co-accused. Statement of the accused is to be recorded on the conditions that he would make full and true disclosure of whole of the circumstances within his knowledge related to the offence . 4. Learned Chief Judicial Magistrate has rightly come to the conclusion that in case applicants are pardoned, it will facilitate the conviction of other co-accused. Statement of the accused is to be recorded on the conditions that he would make full and true disclosure of whole of the circumstances within his knowledge related to the offence . There is no evidence on record to establish that respondent No. 2 in case No. 2-2 of 2013 and respondent No.3 in case No. 61-2 of 2013 have made their applications under any undue pressure, influence, inducement or threat. These applications have been filed after understanding the entire ramifications. They were granted time to ponder over before their statements were recorded by the learned Chief Judicial Magistrate and despite that respondent No.2 in case No. 2-2 of 2013 and respondent No.3 in case No. 61-2 of 2013 have recorded their statements separately alongwith statement of Public Prosecutor. 5. Their Lordships of the Hon’ble Supreme Court in Harshad S. Mehta and others vs. State of Maharashtra, (2001) 8 SCC 257 have held that under sections 306 and 307 of the Code of Criminal Procedure, the pardon is tendered during the investigation, inquiry or trial, as the case may be. The object is to obtain evidence of an accomplice is to facilitate conviction of others. Their Lordships have held as under: “13. Penal laws require that the punishment shall be inflicted on every person found guilty of an offence under those laws. The grant of pardon results in the grantee escaping the punishment for the offence. The nature of power of pardon under Sections 306 and 307 is essentially different than the nature of such power under the Constitution of India whereby the President and/or Governor are empowered to grant pardon. Those powers are exercised after a person is found guilty. That is not so here. Under Sections 306 and 307, the pardon is tendered during the investigation, enquiry or trial, as the case may be. The object is to obtain evidence of an accomplice so as to facilitate conviction of others. Undoubtedly, as contended by Mr. Jethmalani, such a power has to be conferred specifically. It is a substantive power. The power has to be derived from the statutory provisions. Section 306 confers the power to grant pardon in respect of Magistrate. The object is to obtain evidence of an accomplice so as to facilitate conviction of others. Undoubtedly, as contended by Mr. Jethmalani, such a power has to be conferred specifically. It is a substantive power. The power has to be derived from the statutory provisions. Section 306 confers the power to grant pardon in respect of Magistrate. From the scheme of the section and having regard to the nature of the power, we find that Mr. Jethmalani is right in contending that the power to grant pardon is not an inherent power of a criminal Court and is a substantive power to be specifically conferred. It, therefore, follows that such a substantive power does not flow from Section 9(4) of the Act and to this extent the learned Special Court was not right in concluding that Section 9(4), on account of the wide powers it confers, would include amongst others a right on the Special Court to grant pardon. Section 9(4) of the Act does not confer on the Special Court any such power. Section 9(4) is in the nature of a general provision. It confers inherent powers on the Special Court to deal with any matter that may be brought before it providing that for dealing with such a matter the Special Court may adopt its own procedure consistent with the principles of natural justice. Sections 3 and 4 of the Act show that variety of matters could come up before the Special Court for its consideration and for dealing with those matters, the Special Court was empowered to regulate its own procedure consistent with the principles of natural justice. The conferment of that inherent power does not include the power to grant pardon, which cannot be said to be a matter of procedure.” 6. Their Lordships of the Hon’ble Supreme Court in State of Maharashtra vs Abu Salem Abdul Kayyum Ansari and others, (2010) 10 SCC 179 have held that the salutary principle of tendering a pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home. Their Lordships have further held that the object of section 306 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 person granted pardon, the offence may be brought home to rest. Their Lordships have held as under: “15. The salutary principle of tendering a pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home. It has been repeatedly said by this Court that the object of Section 306 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 person granted pardon, the offence may be brought home to the rest. Section 306 Cr.P.C. empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence.” 7. Their Lordships of the Hon’ble Supreme Court in Mrinal Das and others vs. State of Tripura, (2011) 9 SCC 479 have held that where approver suppresses anything material and essential within his knowledge or fails or refused to comply with the condition on which tender was made, protection given to him can be lifted. Their Lordships have held as under: “33. The principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home. The object of Section 306 of the Code of Criminal Procedure, 1973 (in short "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 person granted pardon, the offence may be brought home to the rest. The object of Section 306 of the Code of Criminal Procedure, 1973 (in short "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 person granted pardon, the offence may be brought home to the rest. This Section empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Under Section 306 of the Code, the Magistrate of the First Class is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime. Section 307 of the Code vests the Court to which the commitment is made, with power to tender a pardon to an accomplice. 34. An accomplice who has been granted pardon under Section 306 or 307 of the Code gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 of the Code to that effect, the protection given to him can be lifted. Section 306 (4) makes it clear that the person accepting a tender of pardon should be examined as a witness first in the Court of Magistrate and subsequently in the trial Court. Once an accused is granted pardon under Section 306, he ceases to be an accused and becomes witness for the prosecution.” 8. Section 306 (4) makes it clear that the person accepting a tender of pardon should be examined as a witness first in the Court of Magistrate and subsequently in the trial Court. Once an accused is granted pardon under Section 306, he ceases to be an accused and becomes witness for the prosecution.” 8. Their Lordships of the Hon’ble Supreme Court in Bangaru Laxman vs. State (through CBI) and another, (2012) 1 SCC 500 have held that power is not to judge extent of culpability of person pardoned but to prevent failure of justice by not allowing offender to escape from lack of evidence. Their Lordships have held as under: “43. Any other conclusion would be detrimental to the administration of justice, in as much as, the power to grant pardon is contemplated in situations where serious offence is alleged to have been committed by several persons and with the aid of the evidence of the person, who had been granted pardon, the offence committed may be proved. The basis of exercise of this power is not to judge the extent of culpability of the persons to whom the pardon is tendered. The main purpose is to prevent failure of justice by allowing the offender to escape from a lack of evidence.” 9. In a recent judgment in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1, their Lordships of the Hon’ble Supreme Court have explained that the object of section 306 of the Code of Criminal Procedure is to tender pardon in cases where a grave offence is alleged to have been committed by several persons so that the offence could be brought home with the aid of evidence of the person pardoned. The legislative intent of this provision is, therefore, to secure the evidence of an accomplice in relation to the whole of circumstances, within his knowledge, related to the offence and every other person concerned. 10. Learned Single Judge of Andhra Pradesh High Court in Konajeti Rajababu v. State of A.P, and another, 2002 Cri. L.J. 2990 has explained the scope and ambit of sections 306 and 307 of the Code of Criminal Procedure as under: “13. 10. Learned Single Judge of Andhra Pradesh High Court in Konajeti Rajababu v. State of A.P, and another, 2002 Cri. L.J. 2990 has explained the scope and ambit of sections 306 and 307 of the Code of Criminal Procedure as under: “13. From the foregoing discussion with reference to the relevant provisions in the Code and the law laid down by the Apex Court, it can be summarised thus: (1) The power to grant pardon enjoined under Sections 306 and 307 of the Code is a substantive power and it rests on the judicial discretion of the Court, (2) The power of the Court is not circumscribed by any condition except the one, namely, that the action must be with a view to obtaining the evidence of any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. (3) The Court has to proceed with great caution and on sufficient grounds recognising the risk which the grant of pardon involved of allowing an offender to escape just punishment at the expense of the other accused. (4) The secrecy of the crime and paucity of evidence, solely for the apprehension of the other offenders, recovery of the incriminating objects and production of the evidence otherwise unobtainable might afford reasonable grounds for exercising the power. (5) The disclosure of the person seeking pardon must be complete. (6) While tendering pardon, the Court should make an offer to the one least guilty among the several accused. (7) The reasons for tendering pardon must be recorded and also about the factum of accepting of pardon by the concerned. 14. Ordinarily, it is for the prosecution to ask that a particular accused out of several may be tendered pardon. It is because the State may not desire that any accused be tendered pardon as it does not need approver's testimony, or it may not also like the tendering of pardon to a particular accused because he may be the brain behind the crime or the worst offender. After all, the Court shall not be oblivious of the fact that the power which it exercises is not on its own behalf but on behalf of the prosecuting agency. Therefore, the power shall be exercised only when the prosecution joins in the request. This does not, however, preclude the accused from directly applying the Court. After all, the Court shall not be oblivious of the fact that the power which it exercises is not on its own behalf but on behalf of the prosecuting agency. Therefore, the power shall be exercised only when the prosecution joins in the request. This does not, however, preclude the accused from directly applying the Court. When the accused directly applies to the Court, the Court must first refer the request of the accused to the prosecuting agency and ask for a statement from the prosecution on the request of the accused. If the prosecution thinks that the render of pardon will be in the interests of successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it would indubitably agree to the tender of pardon, The Court should, therefore, embark upon such a procedure in the interests of justice. 16. At this juncture, the learned senior counsel appearing for the revision petitioner contends that the prosecution has already gathered the evidence of an eye-witnesses to the occurrence, therefore, there is no need or necessity to tender pardon to one of the accused. So as to buttress his contention, the learned senior counsel seeks to place reliance upon a Judgment of the Punjab and Haryana High Court in Bhup Singh v. The State of Haryana (1986) 1 Crimes 432. The Court held in the said judgment that the power to grant pardon to an accomplice to become an approver should be exercised only in exceptional cases and one such case could be that but for the evidence of the accomplice it would otherwise not be possible to bring to guilt home to the other accused. That was a case where the prosecution was relying upon three eye-witnesses out of which two of them were the injured witnesses. At the stage of trial, one of the six accused by name Tulsi Ram applied to the trial Judge for grant of pardon under Section 307 of the Code. Although initially when the application for grant of pardon filed by the accomplice had come up for consideration, the State did not oppose but at the stage of hearing the Revision Case filed impugning the order granting pardon to the accomplice, the State chose not to support the application. Although initially when the application for grant of pardon filed by the accomplice had come up for consideration, the State did not oppose but at the stage of hearing the Revision Case filed impugning the order granting pardon to the accomplice, the State chose not to support the application. The main contention in the Revision Case was that the trial Judge did not exercise its discretion in a sound manner inasmuch as there was no necessity to grant pardon as three eye-witnesses were already examined by the prosecution. In those circumstances, the Court held that the discretion to grant pardon should be exercised in exceptional cases and one such exceptional case would be that but for the evidence of accomplice it would otherwise be not possible to bring the guilt home to the other accused. The necessity to examine an accomplice depends upon the facts of each case and no hard and fast rule can be prescribed therefor. Adequacy or otherwise of the evidence to bring home the guilt to the accused affords a reasonable ground so as to conclude whether the discretion conferred on the Court can be exercised or not, or affords a reason to support a judicious exercise of the discretion but the number of eye-witnesses cannot be the criterion. Here, in the instant case, the case of the prosecution mainly hinges upon a sole eye-witness whose statement had been recorded under Section 164 of the Code. Although there is no legal bar to base a conviction on the sole testimony of the witness, but before doing so the testimony shall be found to be credible and pass the test of judicial scrutiny. Even a semblance of reasonable doubt might warrant a benefit of doubt to be given in the case. Under such circumstances, it cannot legitimately be concluded that the evidence gathered on the side of the prosecution so far is quite adequate. Therefore, in view of the peculiar facts in the instant case, it cannot legitimately be concluded that the discretion in this case has not been exercised in a judicious manner.” 11. There is neither any illegality nor any perversity in the orders whereby respondent No.2 in case No. 2-2 of 2013 and respondent No. 3 in case No. 61-2 of 2013 have been granted pardon. There is neither any illegality nor any perversity in the orders whereby respondent No.2 in case No. 2-2 of 2013 and respondent No. 3 in case No. 61-2 of 2013 have been granted pardon. All the mandatory provisions have been complied by the learned Chief Judicial Magistrate before granting pardon to respondent Nos.2 and 3. 12. Accordingly, in view of analysis and discussion made hereinabove, there is no merit in both the petitions and same are dismissed, so also the pending application(s), if any. No costs.