Arvind Khanna vs Cbi
2011 Latest Caselaw 2784 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRL. REV. P. No. 443/2010

                                      Date of Decision : 24.05.2011

ARVIND KHANNA                                   ...... Petitioner
                              Through:   Mr. N.D.Pancholi, Adv.

                                Versus

CBI                                        ......    Respondent
                              Through:   Counsel (Appearance            not
                                         given)
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                         YES
2.     To be referred to the Reporter or not ?              YES
3.     Whether the judgment should be reported
       in the Digest ?                                      YES

V.K. SHALI, J. (Oral)

1. By virtue of the present petition, the petitioner has challenged

the order dated 8.6.2010 vide which a request of the

petitioner for grant of pardon was turned down.

2. Briefly stated the facts of the case are that a case under

Section 420/419/468/471 r/w Section 120B IPC along with

Sec. 477/120B r/w Sec. 13(2) IPC and 13(1) (2) of the

Prevention of Corruption Act, 1988 was filed against the

present petitioner and the other 27 accused persons.

3. In nutshell, so far as the allegations against the present

petitioner were concerned, it was alleged that Ms.Anju

Dhanda, Sr. Manager, National Insurance Company, Haus

Khas Main, New Delhi and Sh.Narender Singh, Sr. Assistant,

New Delhi in the same branch had entered into the

conspiracy with the present petitioner for the purpose of false,

fictitious claims of Insurance Policies which was connected

with the passing of fictitious claims/policies of some persons.

4. It may be pertinent here to mention that this was being done

by the said two co-accused persons in collusion with the

present petitioner who used the act of surveyor along with the

other accused persons.

5. On the basis of his application, the petitioner got his

statement recorded under Section 164 Cr.P.C. before the

learned Special Judge, wherein he has made inculpatory

statement qua his own self, as well as incriminating

statements involving and showing complicity of the other

aforesaid two co-accused persons.

6. After getting the said statement under Section 164 Cr.P.C.

recorded, the matter was taken up by the learned Special

Judge whereupon reply from the CBI was also called for. In

the reply filed by the CBI, it was stated that although there is

sufficient evidence against the two co-accused persons and

the present petitioner for procuring their conviction, they

have no objection in case the present petitioner is permitted a

conditional pardon to procure conviction of the other co-

accused persons.

7. The learned Special Judge after hearing arguments on the

application, passed in the impugned order rejecting the

application of the present petitioner for grant of pardon on the

ground that there was a delay in filing the application apart

from the fact that the CBI in its reply had admitted that they

have sufficient evidence in their possession which would be

good enough to procure the conviction of the co-accused

persons. On the basis of this reasoning, the learned Special

Judge dismissed the application for grant of pardon.

8. The present petitioner feeling aggrieved by the said dismissal

order has preferred the present revision petition before this

Court.

9. I have heard the learned counsel for the petitioner as well as

learned counsel for CBI.

10. The learned counsel for the petitioner has contended that the

impugned order passed by the Special Judge rejecting the

application under Section 306 Cr.P.C. for grant of a

conditional pardon is erroneous on account of the fact that

the CBI had itself taken a stand that they have no objection

to the grant of pardon to the petitioner, subject to his

procuring the conviction of the other two co-accused persons.

It was also stated by counsel for the petitioner that if at all

the permission was to be refused to the petitioner then his

statement u/S 164 Cr.P.C. ought not to have been recorded.

Having recorded the statement of the petitioner u/S 164

Cr.P.C. wherein he has made inculpatory statement against

his own self, not only the said statement can be read against

the petitioner to his detriment, but it has also created an

impression in his mind and his conviction can be based on

the basis of the said statement itself without any

corroboration.

11. The learned counsel has placed reliance on order dated

21.5.2010 passed by the learned Single Judge of this Court in

Crl.Rev.P.No.246/2010, wherein in somewhat similar

circumstance, the order of rejection of grant of pardon by the

learned Special Judge, was set aside by the High Court on the

ground that CBI had stated that they had no objection to the

grant of pardon to enable such co-accused to turn as an

approver and testify against the remaining co-accused

persons.

12. I have carefully considered the submissions made by the

respective sides.

13. Section 306(1) to (3) of Cr.P.C. deal with the question of

pardon, which may be conditional or unconditional. The

relevant sections read as under:

"306. Tender of pardon to accomplice.- (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his 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 the commission thereof.

(2) This section applies to-

(a) Any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

(b) Any offence punishable with imprisonment, which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub-section (1) shall record-

(a) His reasons for so doing;

(b) Whether the tender was or was not accepted by the person to whom it was made,

and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)-

(a) Shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) Shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and has, been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case.

(a) Commit it for trial-

(i) To the Court of Session if the offence is triable exclusively by that court or if the Magistrate

taking cognizance is the Chief Judicial Magistrate;

(ii) To a court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable exclusively by that court;

(b) In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

307. Power to direct tender 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.

308. Trial of person not complying with conditions of pardon. (1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:

Provided that such person shall not be tried jointly with any of the other accused:

Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence.

(2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a court under

sub-section (4) of section 306 may be given in evidence against him at such trial.

(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made, in which case it shall be for the prosecution to prove that the condition has not been complied with.

(4) At such trial the court shall-

(a) If it is a Court of Session, before the charge is read out and explained to the accused;

(b) If it is the court of a Magistrate before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made.

(5) If the accused does so plead, the court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall notwithstanding anything contained in this Code, pass judgment of acquittal."

14. A perusal of the aforesaid provisions would clearly show that

these sections are very special provision which enables the

investigating agency during the course of investigation,

inquiry or trial to file the application before the Court to grant

permission to take one of the co-accused persons as an

approver so that the conviction of the remaining accused

person can be obtained. This is done in a case where the

prosecution finds its case lacking on certain aspects in

material particulars, which will not help them to procure the

conviction of the co-accused persons.

15. In the instant case, the investing agency had not filed an

application for making the present petition as an approver.

On the contrary, the application was filed by the petitioner for

turning the approver. This application of the petitioner was

not opposed by the CBI. If the CBI had sufficient evidence

available with them, they ought to have opposed the

application, rather they conceded that they had no objection

in case he turns approver. The petitioner /accused after

this, has chosen to get his statement already recorded under

Section 164 Cr.P.C. which was in the knowledge of the CBI as

they had not opposed the request. Under these

circumstances, the dismissal of the application holding that

the CBI had sufficient evidence and the application has been

filed belatedly is neither proper nor legal.

16. A perusal of Section 306 Cr.P.C. prima facie will show that an

application for turning an approver can be filed either by the

co-accused himself or by the investing agency.

17. In the instant case, the application for turning an approver

had been filed by the petitioner to which the respondent had

filed reply and taken no objection for turning the approver.

On the contrary, they stated that they have no objection to

the petitioner turning an approver despite the fact that they

claim that they have sufficient evidence in their possession,

which will be sufficient enough to procure the conviction of

the other co-accused persons.

18. Having said so, I feel that it was not proper for the Trial Court

to have rejected the application under Section 306 for grant of

conditional pardon to the present petitioner for procuring the

conviction of the remaining two co-accused persons.

19. There is another aspect of the matter, that is that before the

application for grant of permission to turn approver was

rejected by the learned Special Judge, the statement of the

present petitioner u/S 164 had already been recorded. In the

said statement, he had not only inculpated himself but also

incriminated the other co-accused persons. Having done so,

the petitioner had in fact testified against his own self and

thereafter to deny the permission given to him would have

been very fatal to the case of the petitioner inasmuch as a

statement recorded u/S 164 of the Cr.P.C. would be treated

as a confession of the co-accused u/S 30 of the Evidence Act

and can certainly be relevant not only in procuring the

conviction of his own self but also of the other co-accused

persons subject to the condition that the same is

corroborated in material opportunities as regards the other

accused persons which need not be required for the

petitioner. On this ground also, I feel that the learned Trial

Judge has fallen into an error in rejecting the application of

the present petitioner.

20. The other aspect of the matter is that the learned Special

Judge has rejected the application of the present petitioner on

the ground that the application had been filed belatedly. In

this regard, Section 306 clearly shows that an application for

grant of permission to turn approver can be filed 'at any

stage'. Therefore, the timing of the filing of the application is

not material. What is material is the application of mind and

the proper exercise of the discretion according to the settled

judicial principles.

21. In the instant case, despite their being no objection from

either of the Investigating agency to in the petitioner's

application for turning approver, I feel that it was not proper

for the Special Judge to have rejected the application.

22. For the reasons mentioned above, I feel that the rejection of

the application for grant of permission to turn approver by

the Special Judge was erroneous and exercise of discretion by

the Special Court was not proper and accordingly, the

impugned order is set aside and a conditional pardon is

granted to the petitioner to testify against the remaining two

accused persons. He shall be given pardon subject to the

condition that he is able to procure the conviction of the two

accused persons.

23. It is made clear that in case he is not able to procure the

conviction of the remaining two co-accused persons, who are

involved in transaction in respect of whom there is an

allegation of conspiracy qua him also, he will not be able to

get the said benefit and will be tried in accordance with law.

24. With these observations, the petition stands allowed.

25. Copy of this order be sent to the learned Special Judge.

V.K. SHALI, J.

MAY 24, 2011 RN