apl726.12
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application [APL] No. 726 of 2012
Nanak son of Pesumal Waswani,
aged about 55 years,
occupation - service [under
suspension], resident of Plot
No. 28, Sindhu Nagar,
Jaripatka, Nagpur,
Tq. & Distt. Nagpur [Mah.]. ..... Applicant.
Versus
1. State of Maharashtra,
through Officer In charge
Anti-corruption Bureau,
Nagpur, Tq. & Distt. Nagpur.
2. Mr. Suresh son of Keshavrao
Chichghare,
aged about 52 years,
occupation - Architect [Private],
resident of Plot No. 346,
Shankar Nagar, Nagpur,
Tq. & Distt. Nagpur. ..... Non-applicants.
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Mr. H. D. Dangre, Adv., for the Applicant.
Ms. S. Haidar, Addl. Public Prosecutor for non-applicant no.1.
Mr. C. H. Jaltare, Adv., for non-applicant no.2.
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apl726.12
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*****
CORAM : A.S. CHANDURKAR, J.
Date when arguments
were concluded : 24th November, 2017
Date when judgment
is pronounced : 21st December, 2017
JUDGMENT:
01. This Criminal Application filed under Section 482 of the Code of Criminal Procedure, 1973 [for short, "the Code"] at the instance of Accused No.1 takes exception to the order dated 13th July, 2012 passed by the learned Judge of the Special Court granting pardon to the Accused No.2 in exercise of powers under Section 307 of the Code.
02. The Applicant and Non-applicant no.2 are facing trial with regard to offence punishable under provisions of the Prevention of Corruption Act, 1988. During pendency of the trial, the Non-applicant No.2 moved an application seeking grant of pardon under Section 307 of the Code by undertaking to make a full and true disclosure of the circumstances within his knowledge relating to the offence. This application was initially forwarded to the Anti-corruption Bureau and ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 ::: apl726.12 3 the Accused No.2 was directed to submit the same before the Special Court. After the same was done, the Accused No.1 filed a reply and opposed the prayer made therein. The Accused No.1 moved a separate application under Section 307 of the Code also seeking pardon. This application was opposed by the prosecution and by a common order dated 3rd January, 2011, the learned Judge of the Special Court rejected both the applications. In so far as Accused No.2 is concerned, it was observed that his evidence as an approver was not found to be absolutely essential for successful prosecution. In so far as Accused No.1 is concerned, the Special Court refused to grant pardon.
Thereafter, the prosecution moved another application dated 19th May, 2011 praying that pardon be tendered to Accused No.2 so as to enable him to depose about the manner in which the offence was committed. This application was again opposed by the Accused No.1. The Accused No.1 moved a separate application seeking grant of the pardon to him. By a common order dated 13th July, 2012, the Special Court allowed the application for grant of pardon to the Accused No.2, but rejected the application moved on behalf of the Accused No.1. Being aggrieved, this order is under challenge at the instance of Accused No.1.
03. Shri H. D. Dangre, learned counsel for the Accused No.1, ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 ::: apl726.12 4 submitted that the earlier application moved by the Accused No.2 having been rejected and in absence of any fresh material or additional facts being available, the subsequent application seeking a similar relief was not maintainable. Relying upon the judgments of Honourable Supreme Court in [1] Commander Pascal Fernandes Vs. State of Maharashtra & others [1968 Cri. L.J. 550] and [2] State of U.P. Vs. Kailash Nath Agarwal & others [1973 Cri. L.J. 1196], it was submitted that a fresh application for tender of pardon was maintainable after rejection of the earlier application only if fresh or additional facts are brought on record by the party concerned. Referring to the communications dated 24th February, 2011, 19th April, 2011 and 28th April, 2011 that were issued by the Prosecution authorities after rejection of the first application, it was submitted that except a similar request being made by the Prosecution, there was nothing new or additional that could enable the Special Court to consider the fresh application for grant of pardon. It was then submitted that fresh or additional facts should be relatable to the crime in question and not based purely on exchange of subsequent communications. Without considering this aspect of the matter, the subsequent application was entertained and allowed. It was further urged that pardon ought to have been granted to the Accused No.1 instead of Accused No.2, inasmuch as the Accused No.2 was the main ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 ::: apl726.12 5 culprit and not Accused No.1. It was, thus, submitted that the impugned order granting pardon to Accused No.2 deserves to be set aside.
04. On the other hand, Shri C. H. Jaltare, learned counsel for the Accused No.2, supported the impugned order and submitted that the prosecution having sought grant of pardon to the Accused No.2, Accused No.1 had no authority to challenge that order. The earlier application moved by Accused No.2 had been rejected on technical counts as the prosecution had not joined the request for grant of pardon and, therefore, after the prosecution did so, the said application was rightly allowed. This fact was clear from the communications that were exchanged between the officers of the Prosecution after the earlier application was rejected. It was, therefore, submitted that no interference was called for with the impugned order.
Ms. S. Haidar, learned Addl. Public Prosecutor for the non- applicant no.1, supported the impugned order.
05. On the question of the right of a co-accused to raise a grievance against the order granting pardon under Section 307 of the Code, it was submitted on behalf of the Accused No. 1 that even if it is ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 ::: apl726.12 6 assumed that there was no such right with an accused to challenge the order granting pardon to another accused, this Court in exercise of jurisdiction under Section 482 of the Code can examine the correctness as well as legality of the impugned order and if it is found that the same has been passed ignoring legal precedents and in a manner contrary to law, this Court could interfere in exercise of either revisional power under Section 401 or by invoking inherent power under Section 482 of the Code.
06. I have heard the learned counsel for the parties at length and I have perused the documents placed on record.
07. Before considering the challenge as raised to the impugned order, it would be first necessary to refer to the scope and extent of power in the matter of grant of pardon to an accused by the Court. In Lt. Commander Pascal Fernandes [supra], while considering the provisions of Sections 337 and 338 of the Code of Criminal Procedure, 1898, the Honourable Supreme Court in paragraph 15 of its judgment observed thus:-
"15. ........................................................................... .............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 ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 ::: apl726.12 7 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. 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. ......"
This view was reiterated in Jasbir Singh Vs. Vipin Kumar Jaggi & others [ (2001) 8 SCC 289].
08. It is necessary to refer to the judgment of the Delhi High Court in M. M. Kochar Vs. The State [AIR 1969 Delhi 21]. It was held in paragraph 14 thereof that merely because reasons are required to be recorded while considering the grant of pardon, the same would not convert the matter into a judicial act revisable by the High Court under Section 435 of the Code of Criminal Procedure, 1898. The tender of pardon and its acceptance by person concerned is a matter ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 ::: apl726.12 8 entirely between the Court concerned and the person to whom it is made. This decision of the Delhi High Court was challenged before the Honourable Supreme Court in Criminal Appeal No. 109 of 1968. While the order granting pardon was held valid, the question whether such order was revisable by a superior Court was left open.
The question whether an order granting pardon was revisable was considered by the Honourable Supreme Court in Kailash Nath Agarwal & others [supra]. It was held that an order granting pardon is an order recorded or passed and the revisional Court has got jurisdiction to consider the correctness, legality or propriety of such order. Tender of pardon is a proceeding of the Criminal Court and the revising authority can call for the records to satisfy itself as to the regularity of any proceedings of an interior Criminal Court.
Thus, from the aforesaid, it is clear that the order granting pardon is subject to examination/scrutiny in exercise of revisional jurisdiction by the superior Court.
09. At the same time, the decision of the Honourable Supreme Court in Central Bureau of Investigation Vs. Ashok Kumar Aggarwal & another [ (2013) 15 SCC 222] also needs to be referred to. In paragraph 33 thereof, it was observed thus:-
"33. ...........................................................................::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 :::
apl726.12 9 ...........we are of the view that the grant of pardon by a Court under Section 306 CrPC on being asked by the accused and duly supported by the State is a judicial act and while performing the said act, the Magistrate is bound to consider the consequences of grant of pardon taking into consideration the policy of the State and to certain extent compare the culpability of the person seeking pardon qua the other co-accused."
It was then clarified that though a co-accused may not have a legal right to raise a grievance with regard to grant of pardon, the High Court in exercise of revisional powers can examine the matter so as to ensure that substantial justice should not be defeated on mere technicalities.
10. When the first application moved by Accused No.2 for grant of pardon was considered, the learned Judge of the Special Court found that the say of the prosecution on the question as to whether it would be in the interest of a successful prosecution of the other offender whose conviction would not be possible without approver's testimony was silent. According to the learned Judge, the requirements of Section 306 of the Code - vis-a-vis - the prosecution were not satisfied. It is on that basis that the earlier application came to be rejected. In so far as the subsequent application that has resulted in passing the impugned order is concerned, it can be seen that the learned Judge of the Special Court took into consideration the documents and communications that ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 ::: apl726.12 10 were entered into after passing of the first order and before the subsequent application was moved. On 24th February, 2011, the Office of the Government Pleader gave its opinion to the Deputy Superintendent of Police that it would be beneficial for the prosecution to have Accused No.2 as an approver. Consent in that regard was granted by the Director General, Anti-corruption Bureau to said request. After complying with all necessary formalities, the application for grant of pardon came to be moved. The learned Judge being satisfied that the application in question contained all necessary ingredients and it being the first application moved by the Prosecution for tender of pardon proceeded to allow the same.
11. On perusal of the entire material on record, I am satisfied that by passing the impugned order, the learned Judge of the Special Court did not commit any illegality or irregularity. After being satisfied that such request for tender of pardon was made by the Prosecution after obtaining the consent of superior authorities, the request came to be granted. The endeavour on the part of the learned counsel for the Accused No.1 to point out that there were no fresh or additional facts put up for consideration cannot succeed for the reason that it was the prosecution and not Accused No.2 who had moved the subsequent application. The Special Court having found that the earlier application ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:27:07 ::: apl726.12 11 did not meet the requirements of Section 306 of the Code, had not entertained the same. The subsequent application complying with these requirements was, therefore, entertained. I do not find any reason, whatsoever, to interfere with the order impugned, especially when the same has been passed at the behest of the prosecution and is being subjected to a challenge at the instance of a co-accused.
12. The Criminal Application, therefore, being devoid of any merit, the same is dismissed. No costs.
Judge
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