Mr. Nanak S/O Pesumal Waswani vs State Of Maharashtra Thr. Officer ...
2017 Latest Caselaw 9921 Bom

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          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.


                                *****
 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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                                      *****

                                 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

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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,

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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

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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

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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

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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

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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. ...........................................................................

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...........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

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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

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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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