Delhi High Court
Kamlesh Kumar Jha & Ors. vs Central Bureau Of Investigation on 4 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 5th December, 2016
Decided on: 4th January, 2017
+ CRL.M.C. 4035/2016 & Crl.M.A. 16890/2016
KAMLESH KUMAR JHA & ORS. ..... Petitioner
Represented by: Mr. Sanjiv Kumar, Sr. Adv.
with Mr. S.K. Santoshi and Mr.
Sunil Sethi, Advs.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Represented by: Ms. Rajidipa Behura, Spl. PP.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. Aggrieved by the order dated 8th August, 2016 passed by the learned
CMM declining the prayer of the applicants to not commit the case for trial
to the Court of learned Sessions Judge and the order dated 18th October,
2016 passed by the learned Special Judge dismissing the revision petition,
the petitioners prefer the present petition.
2. RC No. CY1 2009 E 0006 under Sections 405/418/420/486/34 &
120B IPC read with Section 63 of the Copyright Act and 66B of the IT Act
was registered on the complaint of Microsoft India Ltd. wherein a charge-
sheet was filed before the learned ACMM. On 13 th December, 2012 the
learned ACMM recorded the statement of Krishna Kumar, one of the co-
accused and granted him pardon subject to the condition that in case he fails
to disclose true and correct facts in terms of his statement recorded under
Section 164 Cr.P.C. during the course of trial, appropriate order would be
passed. Learned ACMM took cognizance of the offence vide order dated
13th December, 2012 where after the statement of approver Krishna Kumar
was recorded by the learned CMM from 9th July, 2014 to 27th May, 2016
under Section 306(4) Cr.P.C. Vide the impugned order dated 8 th August,
2016 the learned CMM committed the case for trial to the Court of Sessions.
The petitioners preferred a revision petition against the order dated 8 th
August, 2016 which was dismissed vide impugned order dated 18 th October,
2016.
3. Emphasizing on the provision of Section 306(5) Cr.P.C. learned
Senior counsel for the petitioner submits that after the statement had been
recorded by the learned ACMM and a pardon granted to the co-accused
Krishna Kumar the case could not have been committed to the learned
Sessions Court for trial but ought to have been committed to the Court of
learned CMM who erroneously recorded the second statement of the
approver Krishna Kumar.
4. Reliance is placed on the decision of the Supreme Court in Dilip
Sudhakar Pendse & Anr. Vs. Central Bureau of Investigation Crl.A.
966/2013 decided on 16th July, 2013. It is contended that committal of the
trial to the Court of Sessions has materially prejudiced the petitioners
inasmuch as they lose a right of filing a revision petition against the order on
charge or an appeal in case of conviction. The reasoning of the learned
Special Judge that since the learned CMM examined the approver under
Section 306(4) Cr.P.C. it would defeat the objective of Section 306 Cr.P.C. if
the trial is conducted by the same Court is erroneous and illegal.
5. Learned Spl. PP for the State on the other hand submits that the issue
stands settled by the Division Bench of Bombay High Court in the decision
reported as 1979 (81) BOM LR 184 State of Maharashtra Vs. Shanti Prasad
Jain. Referring to the decision of a Single Judge of Tamil Nadu High Court
reported as 1987 Crl.L.J. 1012 V. Krishnaswami Vs. State of Tamil Nadu it is
contended that committal under Section 306 Cr.P.C. can be made only by a
judicial authority of a lower rank to a judicial authority of a higher rank.
6. The issue which arises for consideration in the present petition is
whether after a statement of the co-accused Krishna Kumar was recorded by
the learned ACMM and a subsequent statement was recorded under Section
306 (4) Cr.P.C. by the learned CMM, whether the case was required to be
committed to the Court of Sessions for trial or retained by the learned CMM.
7. Before adverting to the rival contentions, it would be appropriate to
note Section 306 Cr.P.C.
"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 dis- closure 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."
8. The Division Bench of the Bombay High Court in State of
Maharashtra (supra) considering the various provisions of the Criminal
Procedure Code 1898 and Criminal Procedure Code 1973 held that a Court
of an Additional Chief Metropolitan Magistrate is not subordinate to Chief
Metropolitan Magistrate and once the statement was recorded either by the
learned ACMM or the learned CMM the case ought to have been committed
to the Court of Sessions. It was held:
"1. This is a reference by the Additional Chief Metropolitan
Magistrate, third Court, Esplanade, Bombay, under
Section 395(2) of the Criminal Procedure Code. He has
formulated the following three points for decision of the High
Court;
(1) Additional Chief Metropolitan Magistrate,
Bombay, being invested with all the judicial powers of the
Chief Metropolitan Magistrate, whether Additional Chief
Metropolitan Magistrate can be considered on par with
the Chief Metropolitan Magistrate for the purpose of
Section 306 of the Criminal Procedure Code?
(2) Whether in Sub-clause (i) of Clause (a) of Sub-
section (5) of Section 306 viz. "... or if the Magistrate
taking cognizance is the Chief Judicial Magistrate", the
expression "Chief Judicial Magistrate (Chief
Metropolitan Magistrate in Bombay)" includes Additional
Chief Metropolitan Magistrate?
(3) Whether if the Magistrate taking cognizance of the
offence under Section 306 is Additional Chief
Metropolitan Magistrate, he like the Chief Metropolitan
Magistrate, has to commit the case for trial to the Court
of Session under Sub-clause (0 of Clause (a) of Sub-
section (3) of Section 306 or whether he has to make over
the case for trial to the Chief Metropolitan Magistrate
under Clause (b) of Sub-section (5) of Section 306?
2 to 36. xx xx xx xx
37. If this is so, can we say that an Additional Chief
Metropolitan Magistrate, who has all the powers of the Chief
Metropolitan Magistrate so far as the judicial functions are
concerned, be treated in any different way? In fact the
permissive provisions of the Code which authorise the High
Court to appoint one or more Additional Chief Metropolitan
Magistrate, assume that more Courts may be required due to
the increase of the litigation which require infliction of
punishment upto seven years. In other words, more Courts of
that jurisdiction parallel to that of the Chief Metropolitan
Magistrate are required by the state of litigation and enough
number of such Magistrates are to be provided by the High
Court for disposal of business. The Chief Metropolitan
Magistrate and the Additional Chief Metropolitan Magistrate
are thus Courts of the same status having the same and
identical jurisdiction so far as the trial of criminal cases is
concerned.
38. If that is so, the effect of directing the transfer of a case
which involves an approver, from the Court of the Additional
Chief Metropolitan Magistrate to the Court of Chief
Metropolitan Magistrate would defeat the very purpose and run
counter to the principle underlying the provisions of
Section 306(5) (fr). On the contrary the intention of the
Legislature can be best carried out by reading the expression
'Chief Judicial Magistrate' in that sub-section to include also the
'Additional Chief Judicial Magistrate'. While reading that sub-
section in relation to Bombay Metropolitan area it will mean
that the expression 'Chief Metropolitan Magistrate' also includes
the 'Additional Chief Metropolitan Magistrate'."
9. In the decision relied upon by the learned counsel for the petitioner i.e.
Dilip Sudhakar Pendse (supra) cognizance was taken by the Court of
Magistrate and the statement of the approver was also recorded by the same
Court which granted pardon to the accused. It is in that fact situation the
Supreme Court held that since the offences were not exclusively triable by
the Court of Sessions and the Magistrate taking cognizance was not the
Chief Judicial Magistrate nor were offences triable by the Special Judge
under the Criminal Law Amendment Act, 1952 therefore the case had to be
made over to the Chief Judicial Magistrate for trial.
10. Vide the order dated 8th August, 2016 the learned CMM held that
since statement was recorded by the learned ACMM and then by the learned
CMM the case had to be committed to the Court of learned Sessions Judge
even though offences were not exclusively triable by the Court of Sessions.
The same view was taken in the revision filed before the learned Special
Judge vide the impugned order and this Court finds no error therein.
11. An attempt has also been made by the learned senior counsel to
contend that the learned CMM was not authorized to record the second
statement under Section 164 Cr.P.C. as the one had already been recorded by
the learned ACMM and thus the same is liable to be ignored and the case
ought to have been committed to the learned CMM who was competent to
try the offences alleged. Even assuming that there was no need of recording
a second statement under Section 306(4) Cr.P.C. the fact remains that both
the statements were recorded by Courts of same/coordinate jurisdiction and
thus even in the absence of a statement being recorded by the learned CMM,
since the statement under Section 164 Cr.P.C. had been recorded by the
learned ACMM, the case could be committed only to the Court of the
learned Sessions Judge.
12. Consequently, the petition and application are dismissed.
(MUKTA GUPTA)
JUDGE
JANUARY 04, 2017
'ga'
