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2015 DIGILAW 668 (MP)

KASHI PRASAD DUBEY v. STATE OF M. P.

2015-06-30

G.S.SOLANKI, SHANTANU KEMKAR

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JUDGMENT : 1. Dr. Anuvad Shrivastava, learned counsel for the applicant. Shri Anubhav Jain, learned Panel Lawyer for the State. 2. Heard finally. 3. The applicant has filed this petition invoking the extraordinary jurisdiction of this Court under section 482 of the Criminal Procedure Code being aggrieved by order dated 1-11-2014 passed by Special Judge (P.C. Act) Rewa in S.T. No. 1/2008 whereby the application filed by the applicant under section 306/307 of the Criminal Procedure Code has been dismissed and order of separate trial has been passed against the applicant. 4. It is not in dispute that initially the applicant was prosecuted before the Special Judge (P.C. Act) Rewa along with other co-accused persons and trial was commenced vide Special Case No. 1/2008 for the offences punishable under sections 467, 468, 471, 201 and 120-B of the Indian Penal Code and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. During trial, an application under section 306/307 of the Criminal Procedure Code was filed by the applicant for extending tender of pardon , which was allowed by the trial Court vide order (A-3) dated 24-1-2013 and tender of pardon was extended to the applicant. The applicant was made the prosecution witness and was examined before the trial Court. Being aggrieved by order dated 24-1-2013, co-accused Satish Neeraj filed a criminal revision 739/2013 before this Court, which was allowed in part vide order (A-5) dated 4-9-2014. Order dated 24-1-2013 was set aside and the matter was remitted back to the trial Court with the direction to decide the application afresh after extending the opportunity of hearing to all parties of the case. 5. In compliance of aforesaid order, the trial Court extended the opportunity to the prosecution as well as co-accused persons and after considering the objection raised by the prosecution, the application under section 306/307 of the Criminal Procedure Code has been dismissed vide impugned order dated 1-11-2014 and it has been directed to separate the trial against the applicant hence this petition. 6. 6. Learned counsel for the applicant has submitted that the trial Court has committed illegality in not complying with the provision of section 308 of the Criminal Procedure Code wherein it is necessary to file certificate by the Public Prosecutor to the effect that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made. The trial Court has no power to separate the trial of the applicant when all the co-accused persons have been acquitted, thus the impugned order be set aside. 7. Learned Panel Lawyer appearing on behalf of the State has supported the order passed by the trial Court and has submitted that the applicant has already raised this point previously in Criminal Revision No. 612/2015 which was filed by him being aggrieved by order dated 4-3-2015 passed by Special Judge (P. C. Act) Rewa in Special Case No. 1/2008 whereby the charges under sections 467, 468, 471, 201, 120-B of the Indian Penal Code and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act were framed against the applicant. The aforesaid revision has been dismissed by this Court vide order dated 30-4-2015. Now the applicant has again filed this petition invoking the extraordinary jurisdiction of this Court under section 482 of the Criminal Procedure Code. Learned Panel Lawyer has further submitted that since the trial Court has refused to extend the tender of pardon to the applicant vide order dated 30-10-2014, in these circumstances there was no need to comply with the provision of section 308 of the Criminal Procedure Code by the trial Court. Thus, the petition is liable to be dismissed. 8. Learned Panel Lawyer has further submitted that since the trial Court has refused to extend the tender of pardon to the applicant vide order dated 30-10-2014, in these circumstances there was no need to comply with the provision of section 308 of the Criminal Procedure Code by the trial Court. Thus, the petition is liable to be dismissed. 8. We have heard the learned counsel for the parties at length and gone through the impugned order and other material available on record along with the order dated 30-4-2015 passed by this Court in Criminal Revision No. 612/2015; so far as the contention of the applicant in regard to non-compliance of section 308 of the Criminal Procedure Code is concerned, this point was raised by the applicant in Criminal Revision No. 612/2015 and this Court was of the view that since the trial Court vide order dated 30-10-2014 had rejected the applicant's application under section 306/307 of the Criminal Procedure Code and ordered the prosecution of the applicant, therefore, there is no need on the part of the respondent for the compliance of provisions of section 308 of the Criminal Procedure Code. Further, a bare perusal of section 308 of the Criminal Procedure Code makes it clear that it will be applicable when the person/accused, who has accepted the tender of pardon under section 306/307 of the Criminal Procedure Code, but in the instant case, it is admitted position that the order was passed by the trial Court on 24-1-2013 by which the applicant was extended the tender of pardon. Same order was challenged before this Court in Criminal Revision No. 739/2013 and this Court set aside the said order vide order dated 4-9-2014 and the trial Court was directed to comply with the principles laid down by the Apex Court in Lt. Commander Pascal Fernandes vs. State of Maharashtra and others, AIR 1968 SC 594 . Thereafter the trial Court after providing opportunity to the prosecution and other co-accused persons and after hearing them, dismissed the application filed by the applicant under section 306/307 of the Indian Penal Code. Commander Pascal Fernandes vs. State of Maharashtra and others, AIR 1968 SC 594 . Thereafter the trial Court after providing opportunity to the prosecution and other co-accused persons and after hearing them, dismissed the application filed by the applicant under section 306/307 of the Indian Penal Code. Thus, there was no order for extending the tender of pardon in favour of the applicant, therefore, the provision of section 308 of the Criminal Procedure Code is not applicable to the case of the applicant and there is no need to file certificate of the public prosecutor to the effect that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made. 9. So far as contention of the learned counsel for the applicant regarding separation of trial of the applicant is concerned, since at the time of rejection of the application of the applicant filed under section 306/307 of the Criminal Procedure Code progress of the trial of the co-accused persons had reached to the advanced stage and further the evidence recorded in S.T. No. 1/2008 cannot be read in connection with the applicant because at that time the applicant was not the accused as the earlier order passed by the trial Court on 24-1-2013 was in force, in that case and he had appeared as a witness, therefore, the evidence recorded in the aforesaid trial cannot be considered as evidence to be recorded in presence of the applicant/accused as provided in section 273 of the Criminal Procedure Code. Section 273 of the Criminal Procedure Code reads thus:- 273. Evidence to be taken in presence of accused. - Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. Explanation. - In this section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code. 10. In order of avoid the aforesaid special circumstances, in our opinion, the trial Court has rightly separated the trial of the applicant from the co-accused persons. 11. Explanation. - In this section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code. 10. In order of avoid the aforesaid special circumstances, in our opinion, the trial Court has rightly separated the trial of the applicant from the co-accused persons. 11. In view of the aforesaid discussion and aforesaid settled position of law, we are of the considered view that the trial Court has not committed any illegality in passing the impugned order. It is not a case where if the impugned order is allowed to remain in force, it would amount to abuse of process of Court. We do not find any ground to make interference in the impugned order under the extraordinary jurisdiction of this Court under section 482 of the Criminal Procedure Code. 12. Consequently, the petition being devoid of merit, is hereby dismissed.