Thummala Gangi Reddy vs Central Bureau Of Investigation
2022 Latest Caselaw 855 AP

 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

         Criminal Petition Nos.6976 and 6980 of 2021

Common Order:

     Assailing the order dated 26-11-2021 passed in Crl.M.P.

No.84 of 2021 by the learned Chief Judicial Magistrate cum

Principal Assistant Sessions Judge, Kadapa, whereby he has

allowed the petition filed by the prosecuting agency i.e. the

Central Bureau of Investigation (CBI) under Section 306 of

Cr.P.C and tendered pardon to accused No.4 in CBI Case

R.C.No.4(S)/2020/SC-III/ND, these two criminal petitions

under Section 482 of Cr.P.C are filed by accused 1 and 3

respectively.

     2. Criminal Petition No.6976 of 2021 was filed by

accused No.3 and Criminal Petition No.6980 of 2021 was filed

by accused No.1.       Therefore, both the petitions were heard

together and they are being disposed of by this common

order.

     3. The case pertains to a brutal murder of Sri Y.S.

Vivekananda       Reddy    (hereinafter     will   be   referred   as

"deceased",     for   brevity)   on   the   intervening    night   of

14/15-3-2019 in his own house, who was former M.L.A of

Pulivendula Constituency, former Minister of the erstwhile

State of Andhra Pradesh, former Member of Lok Sabha of

Kadapa Parliamentary Constituency and former Member of

A.P. Legislative Council and former Member of Parliamentary

Committee on Science and Technology and Environment and
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Forest. He was also the brother of the former Chief Minister

of the erstwhile State of Andhra Pradesh Sri Y.S. Rajasekhar

Reddy and junior paternal uncle of the present Chief Minister

of the State of Andhra Pradesh Sri Y.S. Jaganmohan Reddy.

      4. As per the prosecution version, on 15-3-2019 in the

early morning Sri M.V. Krishna Reddy, Personal Assistant of

the deceased, lodged a report with Pulivendula Urban Police

stating that the deceased was found dead lying on the floor in

a pool of blood in the bathroom attached to his bedroom and

that there were injuries on the forehead, back of the head and

on the palm and other parts of the deceased. The said report

was registered as a case in Crime No.84/2019 of Pulivendula

Urban Police Station initially under Section 174 of Cr.P.C.

When the Police reached the scene of offence, it is found that

blood on the floor was completely wiped at the scene of

offence and an attempt was made deliberately to destroy the

evidence at the scene of offence. The dead body was sent for

post-mortem examination.         Thereafter, the section of law is

altered to Sections 302 and 201 of IPC.                  Immediately,

a Special Investigation Team i.e., SIT was constituted headed

by    the    Additional     Director   General    of     Police,   CID,

to investigate the case to find out the culprits who committed

the   said   offence   of    murder.     During        the   course   of

investigation, accused No.1 - Thummala Gangi Reddy alias

Yerra Gangi Reddy and two other persons by name Venkata

Krishna Reddy and Y.Prakash were arrested on 05-4-2019.
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Later on, the names of Venkata Krishna Reddy and Y.Prakash

were deleted from the list of accused. While the case is being

investigated by the SIT and as the culprits could not be

traced, various writ petitions have been filed in this Court to

entrust the investigation to the CBI.

       5. Pursuant to the common order dated 11-3-2020

passed in W.P.Nos.3144 of 2019 and 1639 of 2020 by this

Court, the investigation was entrusted to the CBI. Therefore,

the CBI has taken up the investigation in this case and has

been   investigating    the   said      case.    Thereafter,    several

witnesses were examined by the CBI and accused 2 and 3

(Yaditi Sunil Yadav and Gajjala Uma Sankar Reddy) were also

arrested during the course of investigation.           CCTV footages

near   the   house     of   the    deceased     were   also   collected.

The Watchman of the deceased, by name Ranganna, was

examined by the Police and he disclosed the names of

accused 1 to 4 stating that he has seen accused No.1 staying

along with the deceased in his house on that night and that

he has also seen accused 2 to 4 entering the house of the

deceased on the night of 14-3-2019 and again accused 1 to 4

leaving the said house after some time.            The investigation

revealed that a conspiracy was hatched up to commit the

murder of the deceased.           While so, when the statement of

accused No.4, by name Shaik Dastagiri, who was the former

driver of the deceased, was recorded by the CBI under Section

161 of Cr.P.C on 25-8-2021, he has given the detailed version
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relating to the motive to commit murder of the deceased and

as to how the conspiracy was hatched up, by whom and

where the conspiracy was hatched up and how they

committed the murder of the deceased.             On 27-8-2021, his

confessional statement under Section 164(1) of Cr.P.C was

recorded before the competent Magistrate wherein he has

again given a detailed account relating to the motive to

commit murder of the deceased and as to how the conspiracy

was hatched up and where it was hatched up and how they

have executed their plan and perpetrated the offence of

murder of the deceased.     Thereafter, accused No.4 - Shaik

Dastagiri has requested in writing to the CBI to tender pardon

to him stating that he would disclose all the facts relating to

the offence of murder of the deceased that was committed and

requested to treat him as an accomplice.              The CBI has

accepted   his   request   and       filed   an   application   dated

22-10-2021 in Crl.M.P. No.84 of 2021 before the Chief

Judicial Magistrate cum Principal Assistant Sessions Judge,

Kadapa, under Section 306 of Cr.P.C., to tender pardon to

Shaik Dastagiri, who is accused No.4 in the said case.

Notices were ordered on 26-10-2021 to accused 1 to 3.

     6. Accused 1 to 3 have filed their objections by way of

filing counter opposing the request of the CBI to tender

pardon to accused No.4.          On 11-11-2021, the learned

Magistrate directed to furnish copies of statements of accused

No.4 recorded under Sections 161 and 164 of Cr.P.C to the
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counsel of accused 1 to 3. After hearing both the prosecution

and the accused, the learned Magistrate by the impugned

order allowed the petition tendering pardon to accused No.4

on condition of making a full and true disclosure of the whole

of the circumstances within his knowledge relative to the

offence and to every other person concerned, whether as

principal or abettor, in commission of the said offence and

directed    accused   No.4   to   appear   before   the   Judicial

Magistrate of First Class, Pulivendula, for his examination as

contemplated under Section 306(4)(a) of Cr.P.C on receipt of

summons from the said court.

        7. Aggrieved thereby, these two criminal petitions by

accused 1 and 3 were filed questioning the legality and

validity of the impugned order of tendering pardon to accused

No.4.

        8. Learned Special Public Prosecutor for CBI filed

counter affidavit on behalf of respondent No.1 i.e. the CBI

opposing the two petitions. It is pleaded that murder of the

deceased was committed as per well designed plan after

hatching up a conspiracy by accused 1 to 4 and they have

committed the said murder of the deceased very secretly and

thereafter they have also caused disappearance of the

evidence. It is stated that accused No.4 has played a key role

from the inception of the crime as he was part of the

conspiracy, preparation made for murder of the deceased and

execution of their plan to murder the deceased. So, to avoid

the process of law, these criminal petitions are filed by

accused 1 and 3. It is further pleaded that after analyzing the

evidence that was collected till now, the CBI has accepted the

request of accused No.4 and filed application under Section

306 of Cr.P.C to tender pardon to him and no threat or

inducement was given to accused No.4 and no bargain was

struck between the CBI and accused No.4. It is stated that

the issue relating to grant of pardon is between the person

concerned and the court and the other accused have no locus

standi to question the same. The learned Chief Judicial

Magistrate also, after considering the material on record and

while exercising his discretion, has allowed the petition.

Finally pleaded that the credibility of the statement of

accused No.4 cannot be looked into at this stage and it has to

be looked into only after trial of the case is completed and in

the final adjudication of the case while appreciating the said

evidence along with the other evidence that was adduced by

the prosecution. Therefore, prayed for dismissal of the

petition.

9. Heard Sri S.Niranjan Reddy, learned Senior Counsel,

representing Sri T.Nagarjuna Reddy, learned counsel

appearing for the petitioner/accused No.3 in Crl. P. No.6976

of 2021; Sri B.Adinarayana Rao, learned Senior Counsel,

representing Sri Srinivas Rao Bodduluri, learned counsel

appearing for the petitioner/accused No.1 in Crl. P. No.6980

of 2021; Sri Gudapati Venkateswara Rao, learned counsel for

accused No.4 and Sri A.Chenna Keshavulu, learned Special

Public Prosecutor for respondent No.1/CBI.

10. Sri S.Niranjan Reddy, learned Senior Counsel for

accused No.3, submits that accused 1 and 3 have been

challenging the impugned order on three grounds viz.,

(i) There are mala fides on the part of the CBI, the

prosecuting agency, in reporting „No Objection‟ for grant of

anticipatory bail to accused No.4 to secure his evidence as

an approver.

(ii) That pardon can be granted to the co-accused under

Section 306 of Cr.P.C only when no evidence is available to

prosecute the other accused and to prove the guilt against

them and when sufficient evidence is available to prove the

guilt of the other accused that pardon cannot be tendered to

the co-accused even when he discloses all the facts relating to

the commission of the said offence; and

(iii) The evidence that is so far collected by the

Prosecuting Agency and the preliminary charge-sheet that

was filed by the CBI were not produced before the learned

Magistrate at the time of hearing the petition filed under

Section 306 of Cr.P.C to enable him to exercise his discretion

whether to grant or not to grant pardon and it vitiates the

impugned order.

These are the three primary grounds on which learned

Senior Counsel for the petitioner/accused No.3 sought to

assail the impugned order.

11. As regards the first ground of mala fides is

concerned, elaborating the same, it is contended by the

learned Senior Counsel that accused No.4 - Shaik Dastagiri

gave statement under Section 161 of Cr.P.C on 25-8-2021

wherein he has admitted his guilt and also stated as to how

the conspiracy was hatched up by accused 1 to 3 and

himself, to kill the deceased and as to how they killed him

and his confessional statement was also recorded under

Section 164(1) of Cr.P.C on 27-8-2021 wherein he has

reiterated all the said facts and thereafter accused No.4 filed

an application for anticipatory bail on 07-10-2021 in

Crl.M.P. No.720 of 2021 and subsequently on 21-10-2021,

he addressed a letter to the CBI stating that he intends to

turn as an approver and thereafter the CBI did not oppose his

anticipatory bail and accordingly anticipatory bail was

granted to accused No.4 on 22-10-2021 by the IV Additional

Sessions Judge, Kadapa and as such it is clear that a bargain

was struck between accused No.4 and the CBI. Learned

Senior Counsel would submit that but for the anticipatory

bail that was granted as the CBI did not oppose the same,

accused No.4 would not have turned as an approver and

as such there are mala fides on the part of the CBI in

obtaining the statements from accused No.4 and accused

No.4 did not give the same voluntarily.

12. As regards the second ground, learned Senior

Counsel would submit that the evidence of the Watchman,

by name Ranganna, would establish that he has seen

accused No.1 staying along with the deceased in the house on

that night and that he has also seen accused 2 to 4 entering

the house of the deceased during the night of 14-3-2019 and

that he heard some sounds in the house and that he has

again seen accused 1 to 4 leaving the house after some time

and that accused No.1 warned him not to disclose the said

facts to anyone with dire consequences and as such evidence

is available to the prosecution to prosecute the accused 1 to 4

for the said offence. He would submit that it is not as though

that there is no evidence available in proof of complicity of the

accused in commission of the said offence. In other words,

it is his specific contention that it is only when no evidence is

available for the prosecution to prosecute the other accused

and to prove their guilt that the request of the co-accused to

tender pardon to him on the condition of becoming

an approver by disclosing full and true facts relating to the

commission of the said offence can be accepted and not

otherwise. So, according to him, as there is evidence of the

Watchman Ranganna and other scientific evidence available

that accepting the request of accused No.4 and granting

pardon to him by the impugned order is not legally valid and

the impugned order is unsustainable under law.

13. As regards the third ground, learned Senior Counsel

would elaborate contending that the entire evidence that was

collected by the prosecution during the course of investigation

and the preliminary charge-sheet that was filed by the

prosecution was not placed before the learned Magistrate to

ascertain whether there is sufficient evidence to prosecute the

accused and to prove their guilt or not and to enable him to

exercise his discretion whether to grant pardon to him or not

and the failure on the part of the prosecution to place the said

record before the learned Magistrate vitiates the impugned

order.

14. Thus, precisely on the aforesaid three grounds, the

legality and validity of the impugned order has been

questioned by the learned Senior Counsel appearing for

accused No.3.

15. Sri B.Adinarayana Rao, learned Senior Counsel

appearing for the petitioner/accused No.1 in Crl. P. No.6980

of 2021, while reiterating the aforesaid submissions made by

Sri S.Niranjan Reddy, learned Senior Counsel, would contend

that when sufficient evidence is available to prosecute the

accused and to prove their guilt that the request of the

co-accused to tender pardon to him cannot be accepted.

He would also submit that as there is evidence of the

Watchman Ranganna, who stated that he has seen accused

entering the house of the deceased on that night and hearing

some sounds inside the house and has again seen accused 1

to 4 leaving the house after some time, to prove the complicity

of the accused in commission of the said offence, tendering of

pardon to accused No.4 is legally unsustainable. Therefore,

he would pray to set aside the impugned order.

16. Learned counsel for accused No.4-proposed

approver would submit that as accused No.4, being one of the

guilty participants along with other accused who committed

the murder of deceased, has decided to disclose all the facts

and circumstances leading to the genesis of the crime, how

conspiracy was hatched up and how the murder was

committed, that he is entitled to make a request to tender

pardon to him on condition of making full disclosure of all the

said facts and the learned Magistrate who is satisfied that it is

essential for the prosecution to have the evidence of accused

No.4 to establish the guilt of other accused in the crime and

to prevent their escape for want of evidence, has exercised the

discretion in favour of accused No.4 and granted pardon to

him and the said matter is only in between the court and

accused No.4 and the other co-accused cannot question the

same and they have no locus standi to question the impugned

order. He would submit that the person who actually got

grudge against the deceased are accused 1 to 3 and they

engaged the services of accused No.4, who was the former

driver of the deceased, by offering crores of rupees to him and

as such the evidence of accused No.4 is essential for the

prosecution to establish the guilt against accused 1 to 3,

who were the main culprits and thereby prayed for dismissal

of the criminal petitions.

17. Learned Special Public Prosecutor for CBI would

submit that despite the best efforts made earlier by the SIT

and now by the CBI that direct evidence relating to the

commission of murder of the deceased could not be obtained.

He would submit that accused No.4, who is one of the

conspirators and who is one of the accused who participated

in commission of the offence of murder of the deceased along

with the other accused, has now disclosed all relevant facts

relating to the commission of the offence of murder of the

deceased by all the accused including himself right from the

time when the conspiracy was originally hatched up to

commit murder of the deceased and also regarding the motive

to kill the deceased and as to how they entered the house of

the deceased as per their plan after preparing for commission

of the offence of murder of the deceased and as to how they

killed the deceased. So, in order to secure better evidence to

see that the real culprits are not let off scot-free for want of

sufficient evidence that the CBI has accepted the request of

accused No.4 to tender pardon to him as he willingly came

forward to be an approver and to give evidence in this case.

It is pleaded that the learned Magistrate has given ample

opportunity and fair hearing to the other accused before

allowing the petition and after considering the facts and

circumstances of the case and the statements of accused No.4

that the learned Magistrate has rightly exercised his

discretion and tendered pardon to accused No.4 under

Section 306 of Cr.P.C by giving sufficient reasons and there is

absolutely no irregularity or illegality in passing the impugned

order. Therefore, he prayed for dismissal of the two petitions.

18. As it is vehemently contended by the learned Senior

Counsel in both the petitions that there is sufficient evidence

already collected by the CBI to prosecute the accused and to

prove their guilt and as such pardon cannot be granted to

accused No.4 and that the said entire evidence is not

produced before the learned Magistrate except the statements

of accused No.4 recorded under Sections 161 and 164 of

Cr.P.C, this Court while hearing these petitions on

06-01-2022, directed the learned Special Public Prosecutor

for CBI to produce copy of the preliminary charge-sheet filed

before the Court along with the statements of the witnesses

so far recorded for examination by this Court. Accordingly,

pursuant to the said direction, on 20-01-2022 the learned

Special Public Prosecutor for CBI has produced copy of the

preliminary charge-sheet and other material relating to the

investigation of this case in a sealed cover before this Court.

19. Perused the entire record including the preliminary

charge-sheet and the statements of the witnesses so far

recorded. As many as 241 witnesses have been cited in the

charge-sheet which includes all official witnesses and also the

scientific evidence that was collected in this case. Statements

of many of the witnesses are recorded and statements of some

of the official witnesses, it is stated, are not recorded.

20. The facts of the case emanating from the record

clearly reveal that all the accused 1 to 4 i.e. accused No.1 -

Thummala Gangi Reddy, accused No.2 - Y.Sunil Yadav,

accused No.3 - Gajjala Uma Sankar Reddy and accused No.4

- Shaik Dastagiri had motive to kill the deceased. As per the

preliminary charge-sheet, the investigation revealed that the

deceased lost his election held for the Legislative Council and

he was suspecting that some of the accused worked against

him in the said election and that he got grudge against them

and that there are also disputes among them relating to

allotment of ticket to contest for the ensuing election of

Member of Kadapa Parliamentary Constituency and that

there were also differences between the deceased and the

accused relating to the settlement of a land dispute which is

in Bengaluru and as such accused 1 to 3 have decided to

commit murder of the deceased. Accused No.4 - Shaik

Dastagiri was the former driver of the deceased and accused 1

to 3 took the help of Dastagiri to plan as to how to commit

murder of the deceased by offering Rs.5 Crores to him and

accordingly they all entered into a conspiracy to commit

murder of the deceased and that thereafter they have

executed their plan and committed murder of the deceased in

a brutal manner very secretly as per their pre-planned

strategy and thereafter caused disappearance of the evidence.

21. Even though the said murder took place long back

on the intervening night of 14/15-3-2019 and the local Police

initially took up the investigation and thereafter even a SIT

was constituted and they conducted investigation almost for

a period of one year, they could not collect direct evidence

regarding the commission of murder of the deceased. Even

after the investigation was entrusted to the CBI and they took

up the investigation in the month of March, 2020 and even

after lapse of more than one year period, even the CBI

was also unable to collect direct evidence in this case.

The evidence of Watchman Ranganna, at best, only

establishes the fact that he has seen accused No.1 staying

along with the deceased in his house on that night and that

thereafter he has seen accused 2 to 4 entering the house of

the deceased in the midnight and hearing some sounds inside

the house and that thereafter he has seen accused 1 to 4

leaving the house of the deceased after some time and that

accused No.1 warned him not to disclose the said facts

anywhere with dire consequences. But what has actually

transpired inside the house or in the bedroom and bathroom

of the deceased was not witnessed by the Watchman

Ranganna. At best, it would be only a piece of circumstantial

evidence available to the prosecution. Even the other

evidence collected i.e., the scientific evidence etc., would only

be a circumstantial evidence available to the prosecution.

Therefore, in the said facts and circumstances of the case,

as accused No.4 who is directly concerned in commission of

the said offence of murder along with the other accused, has

now come forward voluntarily to make a full and true

disclosure of the whole of the circumstances within his

knowledge relating to the offence and to every other person

concerned including his role relating to the commission of the

said offence, the CBI with a view to obtain the said direct

evidence of accused No.4 to see that the real culprits are not

escaped for want of sufficient evidence accepted the request of

accused No.4 to tender pardon to him. Accordingly, as per

the request made by accused No.4, the CBI has accepted his

request and filed the petition under Section 306 of Cr.P.C to

tender pardon to accused No.4. As can be seen from the

preliminary charge-sheet and the entire evidence that is now

collected during the course of investigation, no evidence is

available to the prosecution to prove as to what has actually

transpired inside the house of the deceased on the

intervening night of 14/15-3-2019 when the murder took

place. Therefore, to establish as to what has actually

transpired inside the house after the accused entered the

house of the deceased on that night, tender of pardon to

accused No.4 became inevitable to the CBI to secure direct

evidence which is other unobtainable in the facts and

circumstances of the case to prove the individual overt acts of

each of the accused and as to what has transpired inside the

house of the deceased and how the murder was committed

etc.

22. In this context, it is significant to note that the

language employed in Section 306 of Cr.P.C makes it manifest

that the very object of granting pardon to the co-accused is to

secure the evidence of the said person, who is directly or

indirectly involved in commission of the offence. The Section

itself starts with the words "with a view to obtaining the

evidence of any person supposed to have been directly or

indirectly concerned in or privy to any offence ... ... ...".

So, the intention of the Legislation or the object underlying

the Section is very much clear from the aforesaid express

words used in the opening part of the Section. Therefore,

having regard to the facts and circumstances of the case,

if the Magistrate is of the opinion that with a view to obtain

evidence of a person, who is directly or indirectly concerned

in or privy to any offence that it is essential to tender pardon

to him, it is well within the competence of the learned

Magistrate to exercise his discretion and grant pardon to the

co-accused. The said power of the Magistrate to grant pardon

is not circumscribed by any condition except the condition of

the said person making a full and true disclosure of the whole

of the circumstances within his knowledge relating to the

offence.

23. It is now well settled law that the guiding principle

for tendering of pardon to an accomplice is to prevent the

escape of the offenders from punishment in grave cases for

lack of evidence. In the instant case, as already discussed

above, no evidence is available for the prosecution to prove as

to what has actually transpired inside the house of the

deceased after accused 1 to 4 entered the house and before

they left the house and to prove the actual overt acts of

individual accused in commission of the said offence. So also

to prove the motive part and the preparation to commit the

said offence also, they require sufficient evidence to establish

the same. In the statement given by accused No.4 - Shaik

Dastagiri under Section 161 of Cr.P.C as well as in his

confessional statement under Section 164 of Cr.P.C, he has

given a detailed account right from the inception as to how

each of the accused got motive to kill the deceased and as to

how they met together and where they met together and when

they met together and how they entered into a conspiracy and

how they made preparation to commit murder of the deceased

and how they planned for the murder and how they

purchased the weapon i.e., the axe to kill the deceased and

how they entered the house and how they actually attacked

the deceased and committed the murder of the deceased by

giving individual overt acts and how they left the house and

thereafter escaped. So, this evidence of accused No.4 along

with the other evidence collected by the prosecution would

help the prosecution to prove the complicity of each of the

accused in hatching up a conspiracy and in committing the

offence of murder of the deceased and as to how they caused

disappearance of evidence etc. His evidence is also essential

to the prosecution as an accomplice to prevent the escape of

the other offenders from punishment in grave cases of like

nature for lack of evidence.

24. Therefore, considering the said evidence on record

and the facts of the case, the learned Magistrate has rightly

exercised his discretion in favour of the prosecution and

tendered pardon to accused No.4 on the condition of his

making a full and true disclosure of the whole of the

circumstances within his knowledge relating to the offence.

So, there is no patent illegality in the impugned order.

25. Therefore, the contention of learned Senior Counsel

for the petitioners/accused 1 and 3 that there is sufficient

evidence for the prosecution to prove the complicity of the

accused and to establish their guilt and as such pardon

cannot be tendered to accused No.4, cannot be countenanced

and it is liable to be rejected.

26. As regards the other contention of the learned

Senior Counsel for the petitioners/accused 1 and 3 that the

CBI did not object for grant of anticipatory bail to accused

No.4 and as such there was a bargain struck between the CBI

and accused No.4 and accordingly accused No.4 agreed to

turn as an approver and his statements are not voluntary is

concerned, this Court finds no merit in the said contention.

The record reveals that on 25-8-2021 itself, accused No.4 in

his statement under Section 161 of Cr.P.C recorded by the

CBI has given full and detailed account relating to the

commission of offence of murder of the deceased by all the

accused. On 27-8-2021 itself, he has given his confessional

statement under Section 164(1) of Cr.P.C before the learned

Magistrate. Thereafter, in the month of October, 2021, i.e. on

07-10-2021, he has moved for anticipatory bail. While the

said application is pending, on 21-10-2021, he has addressed

a letter to the CBI stating that he intends to become

an approver. Therefore, considering the fact that he has

made a full disclosure of facts and circumstances relating to

the manner in which the conspiracy was hatched up and as

to how the murder was committed, given in the month of

August, 2021 itself and as he has now come forward on

21-10-2021 with his letter to become an approver, as the CBI

was of the opinion that his evidence as an approver after

tendering pardon would be helpful to the prosecution to prove

the guilt of the accused beyond all reasonable doubt and

as it would prevent the real offenders to escape for want of

evidence and as he is cooperating in the investigation, the CBI

did not oppose his application for anticipatory bail.

Therefore, it cannot be said that there were any mala fides on

the part of the CBI in accepting the request of accused No.4

to tender pardon to him and it cannot also be said that there

was any bargain that was struck between accused No.4 and

the CBI in this regard.

27. As already noticed supra, with a view to secure

evidence to prove the commission of offence by the accused

beyond all reasonable doubt and to prevent escape of the

offenders for lack of evidence, the CBI has accepted the said

request for tender of pardon. Considering the same grounds,

the learned Magistrate has also allowed the application of the

CBI and tendered pardon to accused No.4. Therefore, that

part of the contention raised by the learned Senior Counsel

for the petitioners/accused 1 and 3 is also liable to be

rejected.

28. As regards the third ground that the preliminary

charge-sheet and the statements of the witnesses recorded

are not produced before the learned Magistrate to ascertain

whether there is sufficient evidence or not and to enable him

to exercise his discretion whether to grant pardon or not, and

that it is fatal to the case of the prosecution and it vitiates the

impugned order is concerned, no doubt, the preliminary

charge-sheet along with the statements of the other witnesses

is not produced before the learned Magistrate. But the

statement of accused No.4 under Section 161 of Cr.P.C and

the confessional statement of accused No.4 given under

Section 164(1) of Cr.P.C whereunder he has given a detailed

account as to how the conspiracy was hatched up to commit

the murder of deceased and how they committed the murder

was given, are produced before the learned Magistrate along

with the other record. The learned Magistrate has considered

the same and he was satisfied that the said statement was

given voluntarily by accused No.4 and that he made a full

disclosure of all the facts relating to the commission of offence

and as he was of the opinion that the said evidence is

essential to prove the guilt of the other accused, he has

exercised his discretion properly to tender pardon to accused

No.4. Even otherwise, non-production of the preliminary

charge-sheet before the learned Magistrate is only a curable

defect. It is only required to examine whether there is

sufficient evidence to prove the complicity of the other

accused and to prove the guilt against them or not. The said

preliminary charge-sheet is now produced before this Court.

This Court has perused and examined the same. Except the

evidence of the Watchman Ranganna, which only establishes

that he has seen the accused entering the house of the

deceased and hearing some sounds inside the house and

thereafter the accused leaving the house, there is no other

direct evidence available to prove as to what has actually

transpired inside the house of the deceased during that night

and how the murder was actually committed and no direct

evidence is also available to prove the conspiracy and

preparation made for murder of the deceased etc. Therefore,

the said defect, even if any, now stands cured by producing

the said preliminary charge-sheet along with the other

evidence before this Court. So, non-production of the said

preliminary charge-sheet before the trial Court by itself would

not vitiate the impugned order. Therefore, as there is no

sufficient evidence and direct evidence to prove the guilt

against the accused and to prevent their escape for lack of

evidence, it become inevitable for the CBI to accept the

request of accused No.4 to tender pardon to him and to

become an approver. The evidence of accused No.4 would be

helpful to the CBI to prove the case against the other accused

beyond all reasonable doubt and to prevent their escape for

lack of evidence. Therefore, the said contention of the learned

Senior Counsel for the petitioners/accused 1 and 3 is devoid

of merit and it is rejected.

29. This Court, therefore, does not find any legal

infirmity in the impugned order of the learned Magistrate.

The learned Magistrate has applied his mind to the facts and

circumstances of the case and rightly exercised his discretion

in favour of the prosecution by taking into consideration the

correct legal position relating to the grant of pardon

under Section 306 of Cr.P.C and allowed the petition.

The impugned order is perfectly sustainable under law and

it warrants no interference by this Court.

30. In this context, it is relevant to consider the

judgment of the Apex Court in the case of CBI v. Ashok

Kumar Aggarwal1, wherein the grounds of interference with

an order of pardon have been highlighted in Para No.26. Four

grounds are enumerated in the said case by the Apex Court to

interfere with order of grant of pardon. It is held as follows:

"The grounds of interference may be - (1) whether the facts admitted or proved, do not disclose any offence or (2) the court

1 (2013) 15 SCC 222

may interfere where the facts do not disclose any offence or (3) where the material effects of the party are not considered or (4) where judicial discretion is exercised arbitrarily or perversely."

None of the above grounds is existing in this case to

interfere with the impugned order.

31. In Suresh Chandra Bahri v. State of Bihar 2, the

Apex Court has explained the object of Section 306 of Cr.P.C

in the following words:

"The object of Section 306 of Cr.P.C therefore 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 basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 of Cr.P.C requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence."

32. In the instant case, the confession of accused No.4

is an inculpatory confession. He has disclosed his role played

in the conspiracy along with the other accused and also

regarding the preparation made by him to commit the offence

by purchasing an axe and also by giving his overt acts of

causing hurt to the deceased along with the other accused.

So, it is not an exculpatory confession excluding himself from

commission of the offence. His confession reveals both the

2 1995 SCC (Cri) 60

role played by him and also other accused in commission of

the offence of murder. So, his evidence is very essential to

establish the guilt of the other accused.

33. The three judgments relied on by the learned Senior

Counsel for the petitioners/accused 1 and 3 in the cases of

CBI v. Ashok Kumar Aggarwal (1 supra), Kanajeti Raja

Babu v. State of A.P.3 and Umesh Kumar, IPS v. State of

A.P. [2012 (2) ALD (Crl.) 510 (AP)] are all distinguishable on

facts and they are not useful to the case of the petitioners.

In fact, the judgment of the Apex Court in CBI v. Ashok

Kumar Aggarwal (1 supra) is more in favour of the

prosecution. It is held therein that co-accused has no legal

right to raise any grievance against order granting pardon

under Section 306 of Cr.P.C. It is only held that the court

can exercise revision powers under Sections 397 and 401 of

Cr.P.C suo motu to examine the validity of any such order.

Moreover, as discussed supra, it is held as per the ratio laid

down in the above judgment that the validity of the order

under Section 306 of Cr.P.C can be questioned only on very

limited grounds which are not existing in the present case.

34. In another case of Kanajeti Raja Babu v. State of

A.P. (3 supra) also, the A.P. High Court held that the secrecy

of 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 valid grounds for exercising the power. So, this

3 2002 (1) ALD (Crl.) 367 (AP)

judgment is also in favour of the prosecution. In fact,

ultimately even though some direct evidence is available in

the said case, still the A.P. High Court has confirmed the

order of granting pardon to the co-accused.

35. In the 3rd judgment in Umesh Kumar, IPS v. State

of A.P., the High Court of A.P. has set aside the order

granting pardon on the ground that the Magistrate did not

examine whether the material placed before him contained

even a bare and bald allegations attracting the ingredients of

cheating.

36. In the instant case, the statement and other

material on record clearly reveal that the facts of the case

clearly constitute an offence of murder of the deceased.

Therefore, the aforesaid judgment is of no avail to the case of

the petitioners.

37. Therefore, none of the grounds urged by the

petitioners to assail the impugned order is sustainable under

law.

38. Resultantly, the criminal petitions are dismissed

confirming the impugned order of the learned Magistrate

granting pardon to accused No.4. The CBI shall proceed with

the further process as required under law. Pending

applications, if any, shall stand closed.

_________________________________________ CHEEKATI MANAVENDRANATH ROY, J.

16 February, 2022.

th

Note:- L.R. Copy to be marked.

(B/o) Ak

HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

Criminal Petition Nos.6976 and 6980 of 2021 (Common Order)

16th February, 2022.

(Ak)