Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 30 (HP)

Asha Rani v. State of Himachal Pradesh

2014-01-04

TARLOK SINGH CHAUHAN

body2014
Judgment : Tarlok Singh Chauhan, J (Oral). The petitioner has preferred the present petition under Section 397 read with Section 401 of the Code of Criminal Procedure for quashing of the order dated 14.3.2014 passed in Cr. Misc application No.16-4/14 by learned Addl. Sessions Judge, Ghumarwin, Distt. Bilaspur with a prayer to allow the application dated 22.11.2013. 2. The brief facts as relevant for the disposal of the present petition are that the applicant/accused No.2 Asha Rani had filed an application under Section 306 of the Code of Criminal Procedure for tendering her pardon and for transposing her as prosecution witness in the case. It was averred in the application that during the trial good sense prevailed upon petitioner and she wants to disclose the true facts which could not be disclosed at the time of investigation, out of fear and threat from the accused No.1 and his family members. It was averred that the petitioner was ready to depose the truth being a sole eye witness to the occurrence. It was averred that she would disclose these facts only after getting the pardon. No prejudice would be cause to either party, rather it would facilitate the Court to reach at a just decision. 3. The application was opposed by the Accused No.1 Ranjeet Singh by filing a reply where an preliminary objection was taken to the effect that petitioner had many opportunities to disclose the alleged act and now when a criminal complaint had been filed by the accused against her, she had preferred the application just on account of enmity. He further contended that on account of the act and conduct of the petitioner she did not deserves to any pardon. The rest of the averments made in the reply were not necessary for the purpose of adjudicating the present case. 4. It may be emphasized here that insofar the prosecution/State is concerned; no reply to this application was filed on its behalf. 5. The learned trial Court rejected the claim of the petitioner for grant of pardon by giving the following reasons:- “While exercising the power to tender pardon the Court is to see, where the accused makes an application seeking tender of pardon, whether the prosecution has joined in the request and further wherein such accused would make a full and true disclosure of the whole of the circumstances within her knowledge relating to the offence. To my mind merely “no objection” for tendering pardon on behalf of the prosecution would not be sufficient. The prosecution ought to have joined in the request made by applicant/accused No.2 Asha Devi for the reasons stating as to why tender of pardon is necessary and that the conviction of the other accused is not easy without approver’s testimony. This is all lacking in the instance case. Section 306 of the Code of Criminal Procedure confers power upon Chief Judicial Magistrate or a Metropolitan Magistrate as well as Magistrate of First Class, at any stage of the investigation or trial to tender a pardon to any person, with a view to obtaining the evidence of such person supposed to have directly or indirectly concerned in or privy to an offence to which this Section applies, on a condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence. Section 307 of the Code of Criminal Procedure also confers similar powers upon the Court to which commitment of a case is made “on the same condition”. The expression “on the same condition” clearly refers to the conditions of tendering a pardon engrafted in Sub Section (i) of Section 306 of the Code. It is well settled position of law that it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. If the prosecution thinks that the tender of pardon will be in the interest of successful prosecution of the other accused whose conviction is not easy without the approver’s testimony, it is open for the prosecution to agree to the tendering of pardon to a particular accused. The power to tender pardon which the Court exercises, is not on its own behalf but on behalf of Prosecuting Agency and therefore, it is to be exercised only when the prosecution joins in the request. It was laid down in Jasbir Singh v. Vipin Kumar Jaggi and ors. 2001 Supreme Court Cases (Cri) 1525 by the Hon’ble Apex Court that although the power to actually grant the pardon is vested in the Court, obviously the Court can have no interest whatsoever in the out-come 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. That is the prosecution’s job. It is, thus, clear that it is for the prosecution to ask that the particular accused, out of several may be tendered pardon, if the prosecution thinks that the tendering of pardon will be in the interest of successful prosecution of the other accused whose conviction is not easy without approver’s testimony. It is open for the prosecution to agree for tendering a pardon to a particular accused if an application is filed by such accused. But where the accused directly applies to a Court, he must first refer the request to the Prosecuting Agency. In the present case, nowhere any such request was ever made by applicant/accused No.2 Asha Devi to the Prosecuting Agency. No statement from the prosecution on the request of applicant/ accused Asha Devi has been made. No reply was filed by the prosecution on record stating the reasons for supporting the application filed by the applicant/accused No.2 Asha Devi. The prosecution simply gave its no objection without the application of mind to the request and recording it’s own reasons in the form of reply. To my mind, the prosecution ought to have joined in the request with the objectivity. The prosecution did not offer to file detailed affidavit in the Court justifying their no objection for tendering pardon to the applicant/accused No.2 Asha Devi. Therefore, in this view of the matter, I am of the view that this application filed by the applicant/accused No.2 Asha Devi deserves to be dismissed and is accordingly dismissed. It be tagged with the main case file after registration and completion.” It is against this order that the petitioner come with this petition before this Court. 6. I have heard Mr. B.S. Chauhan, learned counsel for the petitioner and Mr. V.K. Verma, learned Addl. Advocate General on behalf of the State. Learned counsel for the petitioner contends that the impugned order is not based on settled principles of criminal jurisprudence rather it is complete misreading of the provisions applicable in the case and therefore, the order deserves to be quashed and set aside. It is further contended that the learned trial Court has completely misread, misinterpreted the judgment passed by the Hon’ble Supreme Court. For this purpose, the learned counsel has relied the judgment of the Hon’ble Supreme Court in Lt. It is further contended that the learned trial Court has completely misread, misinterpreted the judgment passed by the Hon’ble Supreme Court. For this purpose, the learned counsel has relied the judgment of the Hon’ble Supreme Court in Lt. Commander Pascal Fernandes v. State of Maharashtra and others, AIR 1968 SC 594 wherein the Hon’ble Supreme Court after noticing the fact and law on the subject has held as follows:- “11. It follows that the powers of the Special Judge are not circumscribed by any condition except one, namely, that the action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also a condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor. The disclosure must be complete as to himself and as to any other person concerned as principal or abettor. There is no provision for the recording of reasons for so doing, nor is the Special Judge required to furnish a copy to the accused. There is no provision for recording a preliminary statement of the person. 12. There can be no doubt that the Section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the Section to show that the Special Judge must he moved by the prosecution. He may consider an offer by an accused as in this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this case. 13. There is no merit in the contention that S. 540 of the Code of Criminal Procedure governs either Ss. 337 or 338 of the Code or S. 8 (2) of the Criminal Law Amendment Act. The action, therefore, was not outside the jurisdiction of the Special Judge in this case. 13. There is no merit in the contention that S. 540 of the Code of Criminal Procedure governs either Ss. 337 or 338 of the Code or S. 8 (2) of the Criminal Law Amendment Act. That Section only confers powers on the Court to summon material witnesses at any stage of any inquiry or trial or other proceeding under the Code. That power is not to be confused with the power to tender pardon to an accused. The considerations for summoning witnesses as court witnesses are somewhat different from the considerations which a tender of pardon should be made. It is no doubt necessary to bear in mind the interests of justice in either case but there the common factor ceases and other considerations. It is not, therefore, possible to read Section 540 with Section 337 and 338 of the Code or with Section 8 (2) of the Criminal Law Amendment Act. 14. The next question is whether the Special Judge acted with due propriety in his jurisdiction. Here the interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider. Before the Special Judge acts to tender pardon, he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused. What is meant by public policy is illustrated by a case from Public Commission Court (Reg. v. Robert Dunne, (1851) 5 Cox Cr. Cas 507) in which Torrens, J. on behalf of himself and Perrin, J. observed as follows : "From what I can see of this case, this witness Bryan, who has been admitted as an approver by the Crown is much the more criminal of the two on his own showing : ......... I regret that this witness, Bryan, has been admitted as evidence for the Crown and thus escaped being placed upon his trial. I regret that this witness, Bryan, has been admitted as evidence for the Crown and thus escaped being placed upon his trial. It is the duty of magistrates to be very cautious as to whom they admit to give evidence as approvers, and they should carefully inquire to what extent the approver is mixed up with the transaction, and if he be an accomplice, into the extent of his guilt. " 15. In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8 (2) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. 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 prosecuting 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. 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 interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably 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. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the Public Prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided. Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail. It will accordingly be dismissed.” 7. Mr. B.S. Chauhan, learned counsel for the petitioner has further relied the judgment passed by the Hon’ble Supreme Court in Jasbir Singh vs. Vipin Kumar Jaggi and others, (2001) 8 SCC 289 wherein the Hon’ble Supreme Court has held:- 17. The provisions of Sections 337 and 338 of the 1898 Cr.P.C. have been substantially re-enacted as Sections 306 and 307 of the present Cr.P.C. For the purposes of this case, however, we are concerned only with Section 307 which provides: "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." 18. 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 Cri 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 prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge execises 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 interests 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." (Emphasis supplied) 19. Judged by this standard, the first order of the Sessions Judge refusing pardon to the respondent No. 1 even though it was actively canvassed for by the Special Public Prosecutor, was wrong. It was not for the Sessions Judge to have considered the possible weight of the approvers evidence, even before it was given. In any case, the evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. It was not for the Sessions Judge to have considered the possible weight of the approvers evidence, even before it was given. In any case, the evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. But the suspicion may be removed and if the evidence of an approver is found to be trustworthy and acceptable then that evidence might well be decisive in securing a conviction (see Suresh Chandra Bahri v. State of Bihar (1994 AIR SCW 3420 : AIR 1994 SC 2420 : 1994 Cri LJ 3271) (supra).The Sessions Judge could not and indeed should not have assessed the probable value of the possible evidence of the respondent No. 1 in anticipation and wholly in the abstract. 20. The role of the prosecutor under Section 307 is distinct and different from the part he is called on to play under the provisions of Section 321, Cr.P.C. Under Section 321, the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. The most noticeable difference between this Section and Section 307 of the Act is that unlike the grant of pardon under Section 307, withdrawal from prosecution under Section 321, Cr.P.C. is unconditional although it does provide for the express permission of the Central Government in specified cases. Section 321 also does not spell out the circumstances under which the power may be exercised, either by the prosecution or by the Court in granting consent. Section 321 also does not spell out the circumstances under which the power may be exercised, either by the prosecution or by the Court in granting consent. However, it has been judicially recognised that "implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances" (Subhash Chander v. The State (Chandigarh Admn.), AIR 1980 SC 423 : (1980 Cri LJ 324) or it may be that "broader considerations of public peaces, larger considerations of public justice and even deeper considerations of promotion of long-lasting security in a locality, or order in a disorderly situation of harmony in a faction milieu, or halting a false and vexatious prosecution in a Court, may persuade the Executive, pro bona publico, to sacrifice a pending case for a wider benefit". (M. N. Sankaranarayanan Nair v. P. V. Balakrishnan, AIR 1972 SC 496 . 21. In contrast the power of tendering pardon under Section 307 is restricted to one consideration alone namely the obtaining of evidence from the person to whom pardon is granted relating to the offences being tried. But it needs to be noted at this stage that the power under Section 321 not only emphasises the role of the Executive in the trial of offences but also that the Executive can exercise the power at any time during the trial but before the judgment is delivered. This will be relevant in construing the language of Section 64 of the Act. 8. The impugned order when viewed in light of the judgment passed by the Hon’ble Supreme Court in Lt. Commander Pascal Fernandes v. State of Maharashtra and Jasbir Singh vs. Vipin Kumar jaggi cases ( supra) is not an order passed within the parameter of law. The learned trial Court has failed to taken into consideration the ratio of the judgment in Lt. Commander Pascal Fernandes case wherein the Hon’ble Supreme Court as unequivocal terms has held that though 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 prosecuting agency. Commander Pascal Fernandes case wherein the Hon’ble Supreme Court as unequivocal terms has held that though 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 prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. In the present case, the learned trial Judge has virtually entered the ring as a veritable director of prosecution, little realizing that the powers being exercised were not on his own behalf but on behalf of the prosecuting agency and therefore, this power could have been exercised only when the prosecution joins in the request. In the present case, as already observed hereinabove, the prosecution/State did not choose to contest the application and therefore, the consent of the State was apparent. 9. Even before this Court, it is the stand of the prosecution/State that the “learned trial Court has traveled beyond the provisions of Sections 306 Cr.P.C and failed to appreciate that any person can move the application for seeking pardon during the pendency of the trial. It is once again reiterated that there was no objection on behalf of prosecution which could have been considered to be the consent of the prosecutor to make the petitioner a prosecution witness”. It has lastly been submitted that “in case the learned trial court felt that the application was to be moved by the prosecution, then it was duty incumbent upon the Court to provide an opportunity to the prosecution/State to move such application before passing the impugned orders dated 14.3.2014.” 10. 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. This was so held by the Hon’ble Supreme Court in State of Maharashtra vs. Abu Salem Abdul Kayyum Ansari and others (2010) 10 SCC 179 wherein the Supreme Court has held:- “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. 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.” In such situation when the prosecution itself in the given circumstances is of the view that the pardon is in the interest of successful prosecution of trial, the Court is not required to decide any other issue in view of decision rendered in Lt. Commander Pascal Fernandes case ( supra) wherein it has been categorically held that “the Court will indubitably agree to the tendering of pardon and must not take on itself the task of determining the propriety as to whether the pardon is to be tendered or not.” 11. In view of the well settled law, the order passed by the learned trial Court rejecting the application under Section 306 of the Code of Criminal Procedure is not sustainable in the eyes of law and is therefore, set aside. The application filed by the petitioner under Section 306 of the Code of Criminal Procedure is allowed, however, subject to such condition(s) which the learned trial Court in the facts and circumstances of the case thinks just and proper. 12. With the above observations, the present petition is allowed and the order dated 14.3.2014 passed in Cr. Misc application No.16-4/14 by learned Addl. Sessions Judge, Ghumarwin, Distt. Bilaspur is ordered to be set aside. Leaving the parties, to bear their own costs.