Sanjiv Rajendra Bhatt vs State Of Gujarat
2021 Latest Caselaw 2939 Guj

         R/CR.RA/107/2021                                        CAV ORDER




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 107 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law

as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== SANJIV RAJENDRA BHATT Versus STATE OF GUJARAT ========================================================== Appearance:

MR SAURIN A SHAH for the Applicant MR MITESH AMIN, PUBLIC PROSECUTOR for Respondent No. 1

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CORAM: HONOURABLE MR. JUSTICE S.H.VORA

Date : 20/02/2021

CAV ORDER

1. By way of present Criminal Revision Application, the applicant - original accused No.2, namely, Mr. Sanjiv Bhatt, challenges order dated 28.1.2021 passed by the learned 5th Additional Sessions Judge, Banaskantha @ Palanpur below

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application Exh.132 in Special (NDPS) Case No.03 of 2018, whereby the learned Sessions Judge refused to grant following prayer made by the applicant - original accused No.2 in para 2(A) of the application Exh.132.

"2(A) That the Hon'ble Court be pleased to adjourn the hearing of Exh.67 till the application vide Exhs.58 & 63 are not disposed of by the Hon'ble Court in view of the peculiar facts and circumstances as stated above."

2. Learned advocate Mr. Saurin Shah appearing for the applicant - original accused No.2 took the Court to the chronology of events of the case right from 30.4.1996 till filing of the application Exh.132 and specifically drawn the attention of this Court to the communication dated 1.8.2018 addressed by the CID (Crime) to the S.P., Palanpur with respect to handing over the investigating papers with reference to offences punishable u/s 17 of the NDPS Act vide I

- C.R. No.216 of 1996 registered with Palanpur City Police Station. According to him, the applicant - original accused No.2 has sought production of various documents enlisted in the applications below Exhs.58 & 63 purported to have been filed u/s 91 of the Code of Criminal Procedure, 1973 (for short "the Code") for cross-examination of the witnesses with regard to I - C.R. No.216 of 1996 and other documents. It is vehemently argued and submitted by learned advocate Mr. Shah that in connivance with the State, the accused No.1 Mr. IB Vyas submitted an application Exh.67 to become Approver filed u/s 306 of the Code on 10.10.2019 immediately after release on temporary bail on the ground of health on 23.9.2019 and remained on temporary bail for considerable time as per various orders passed by the Coordinate Bench.

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Lastly, learned advocate Mr. Shah would submit that the statement placed on record by accused No.1 Mr. IB Vyas along with his application Exh.67 is made in line of the prosecution case and the same is eloquent from the reading of the charge sheet papers and therefore, the applicant - accused No.2 moved an application to defer the hearing of Exh.67 till applications Exhs.58 & 63 filed u/s 91 of the Code to throw light on the aspect as to how the statement of accused No.1 is far from truth are heard and decided.

3. Per contra, learned Public Prosecutor would submit that application Exh.132 is filed with a view to delay the hearing of the case and applications Exhs.58 & 63 are made with a view to use the documents at the time of cross-examination of the witnesses and not for any other purpose. Further, as per observations made by the Coordinate Bench in para 6 and 11 of the order passed on 16.9.2020 in Criminal Misc. Application No.11495 of 2020, all the applications, namely, Exhs.58 & 63, 67 and 95 are to be heard and decided as and when physical hearing commences and accordingly, the applicant herein tendered an application on 12.1.2021 before the learned trial Court to fix the date of hearing of pending applications. Learned Public Prosecutor would further submit that as such, applications Exhs.58 & 63 were already heard and both the applications were kept for orders on 25.10.2019 and thereafter, the matter was listed on various dates till 9.3.2020 for pronouncement of orders on the said applications Exhs.58 & 63 filed u/s 91 of the Code, but as the learned Special Judge was transferred, the question of fresh hearing of both the applications arose once again. According to learned Public Prosecutor, at that relevant point of time,

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application Exh.67 tendered by accused No.1 Mr. IB Vyas to become Approver was pending, but no any application of the present nature is filed before application Exh.132 was moved, and now, application Exh.132 is filed only with an intention to further delay the trial. Lastly, learned Public Prosecutor would submit that the applicant - accused No.2 has no locus standi to have audience at the time of hearing of application Exh.67 filed u/s 306 of the Code, as the issue to tender pardon to an accused person is a matter between the Court and the concerned accused and therefore, to postpone/defer the hearing of application Exh.67 till decision on applications Exhs.58 & 63 filed u/s 91 of the Code is beyond the scope of provisions of sections 306 of the Code and its outcome are unrelated and unconnected with the outcome of applications Exhs.58 and 63. According to learned Public Prosecutor, the outcome of applications Exhs.58 & 63 filed u/s 91 of the Code has nothing to do with the hearing of application tendered below Exh.67 u/s 306 of the Code for grant of pardon and to consider the accused No.1 as Approver in the case is a matter between the Court and the concerned accused. In support of the submissions, learned Public Prosecutor referred and relied on decision rendered by the Division Bench in case of Central Bureau of Investigation Vs. N.K. Amin and others reported in 2010(3) GLH 727 and decision dated 2.5.2019 rendered by the Coordinate Bench of this Court rendered in Criminal Revision Application No.459 of 2019.

4. Heard learned advocates appearing for the respective parties at length, perused the papers placed on record and examined the relevant law on the subject matter and

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considered the principles settled in the decision cited at bar by learned Public Prosecutor.

5. The only issue, which needs to be considered by the Court, is whether the applications filed by the applicant below Exhs.58 and 63 u/s 91 of the Code should be heard before application Exh.67 filed by the accused No.1 u/s 306 of the Code to tender pardon to the accused No.1 Mr IB Vyas. In other words, whether the Court can hear and decide application Exh.67 tendered by the accused No.1 Mr. IB Vyas to become Approver before applications Exhs.58 and 63 are heard and decided in view of the grounds raised in the application Exh.132. As the application Exh.67 pertains to section 306 of the Code, the same would be relevant and reads 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 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.

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(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."

6. The scheme of section 306 of the Code shows that the matter of grant of pardon is essentially a matter between the person, who applies for pardon and the Court concerned. The role of the co-accused would come into play only after the pardon is granted and the statement is made by the person,

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who has been granted pardon. If the prosecution relies upon said co-accused at the time of trial, the other co-accused will have a right to cross-examine him and defend the case appropriately, if such evidence is to be used against other co- accused and thus, the interest of co-accused is sufficiently protected. Therefore, it cannot be said that any prejudice will be caused to the co-accused or their rights would got affected thereby since sufficient safeguards are inbuilt in the provisions of section 306 itself.

7. Serious allegations are made against the State as to timing of filing of application Exh.67 u/s 306 of the Code on 10.10.2019 and release of accused No.1 on interim/temporary bail being Criminal Application No.15390 of 2019 on 17.10.2019 and extension of temporary bail from time to time on one hand and on the other hand, the State has made an allegation that the applicant - accused No.2 is delaying the trial for one or another pretext by filing present application to defer the hearing of application Exh.67 till applications Exhs.58 and 63 are disposed of.

8. As such, present case has its long chequered history, but the Court shall deal with the contentions of both the sides to the extent found relevant and for the purpose of deciding subject matter of the application Exh.132 only, because the issue as to grant of pardon is yet to be decided on one hand and also applications preferred by the present applicant u/s 91 at Exhs.58 and 63 are at large before the learned Special Judge and thus, till core issue of the applications filed below Exhs.58, 63 and 67 are at large and yet to be decided, the Court is required to avoid to express any opinion on the

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submissions in the nature of allegations and counter allegations at this stage, as it is likely to prejudice the case/defense of the either party.

9. Now, coming to the issue raised in the present application, it is the contention of the learned advocate for the applicant that the prosecution outrightly colluded with the accused No.1 in view of timing of grant of temporary bail and therefore, learned Special Judge would be required to grant pardon and further an attempt was made to contend that there would be no option, but to grant pardon to the accused No.1 as he has tendered application and made submissions in line of the prosecution case as per charge sheet papers. The submissions is devoid of merits at law on two counts. Firstly, the provisions contained in section 306 of the Code has not conferred any power to the prosecution, but has conferred power to the Court or Magistrate concerned. When, it is so, when the accused is seeking pardon u/s 306 and assuming that the prosecution supports such application made by the accused seeking pardon, then the Court is required to examine the issue in accordance with law and to advance the interest of justice to the case on hand. Secondly, looking to the frame and scope of section 306 of the Code, the Court can decline or refuse the grant of pardon in a given case if it is found that the prosecution has joined the request for grant of pardon to accused with some extraneous consideration other than to advance the interest of justice. So, apprehension expressed by learned advocate for the applicant as if the Court would accept the pardon if the prosecution joins such request is not well founded and the Court is also not inclined to act on such apprehension.

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10. Before matter is further considered, it is also fruitful to refer the observations made by the Division Bench of this Court in case of N.K. Amin (supra), more particularly, para 38 and 39, which reads as under:

"38. The attempt was made by the learned Sr. Counsel Mr.Tulsi, by relying upon the decision of the Apex Court in the case of "Commander Pascal Fernandes, Lt. v. State of Maharashtra and Ors.", reported in AIR 1968 SC 594 (supra), to contend that if the prosecution joins the request for pardon, the learned Magistrate would be required to grant pardon and further attempt was made to contend that there would be no option but to grant pardon to the said witness. We cannot agree with the contention of the learned Counsel for two reasons; one is that the Parliament has not clothed the power for grant of pardon to the prosecution, but has given power to the Court or the Magistrate concerned. When the power is vested to a judicial officer, it means that even if the accused is seeking pardon under Section 306 and the prosecution supports the application made by the accused seeking pardon, then also the same by itself is not sufficient, but it is for the Court to examine the aspects for exercise of power for grant of pardon may not be as veritable director of the prosecution, but as a judicial authority to advance the interest of justice of that particular case. Secondly, it cannot be said that it leaves no room for the learned Magistrate to decline the grant of pardon in a given case if it is found that the prosecution has joined the request for grant of pardon of the accused with some extraneous consideration other than those for advancement of interest of justice or that it frustrates the interest of justice. Therefore, it can hardly be said that in all cases merely because one of the accused has made the application for grant of pardon under Section 306 of Cr.P.C., and the prosecution has joined the request for grant of pardon without satisfying the learned Magistrate that the approver's evidence would be in the interest of successful prosecution of the other offenders whose conviction is not easy without approver's testimony, the learned Magistrate has to grant pardon. The fact that the Parliament has vested the power to the learned Magistrate i.e. Judiciary to grant of pardon as per the provisions of Code of 1973, means that judicial authority in the system of administration of

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justice is to decide as to whether the pardon should be granted or not and while taking such decision apart from the stand of the accused concerned, who has applied for pardon and the prosecution, which is to decide the mode and manner of success in the prosecution for conviction, it would be also required to examine as to whether grant of such pardon would result into advancing the interest of justice or not. If in a given case the Magistrate is of the opinion that grant of pardon would not result into advancement of interest of justice he may decline the pardon.

39. It, therefore, appears that the powers so vested with the Court or the learned Magistrate are with the holy purpose of advancement of the interest of justice and it leaves no vesting or arbitrary power upon him. Not only that, but as per Sub-section (3), the Magistrate is enjoined with the duty to record the reasons so doing and the said provision of Sub-section (3) requiring the learned Magistrate to record the reasons can, on the face of it, be said as ruling out any arbitrariness in exercise of the powers and when the provision of the statute is made for exercising of the power for reasons to be recorded for such purpose, that would mean in furtherance to the principles of natural justice. Further, the exercise of the power by the learned Magistrate can be challenged before the higher forum as per the provisions of the Code and if the higher forum finds that the Magistrate has not exercised the power on the ground germane to the advancement of the interest of justice, but has exercised the power on the ground nongermane to the advancement of the interest of justice, the same can be set at naught by the higher forum. In view of the aforesaid, when the section itself provides for all reasonable care for exercise of the power for grant of pardon upon the learned Magistrate with the mechanism provided under the Code to challenge such decision coupled with the procedure to be adopted by the learned Magistrate as per the above referred decision to permit the other co-accused to crossexamine the accomplish witness in the event the pardon is so granted, it cannot be said that there is any arbitrary power so vested upon the learned Magistrate, nor can it be said that it would adversely affected the other co-accused if the power is so exercised for advancement of interest of justice."

11. In view of above observations of the Division Bench of this Court in case of N.K. Amin (supra) cited by learned

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Public Prosecutor, it is crystal clear that in the matter of power u/s 306 of the Code, co-accused has NO SAY in the matter, because the co-accused will have a right to cross- examine accused No.1 Mr. IB Vyas if his application below Exh.67 is allowed and accepted by the Court. So, when power is yet to be exercised by the Court u/s 306 of the Code, there is no any right available to co-accused to file present application below Exh.132 and to make a request to defer the hearing till applications Exhs.58 and 63 are decided. It is relevant to note here that applications Exhs.58 and 63 u/s 91 are filed for production of certain specific documents enlisted therein for the purpose of cross-examination and not for any other purpose. Apart from it, when the accused has NO SAY in the matter of tender of pardon and its acceptance by the accused concerned is a matter entirely between the Court concerned and the accused to whom it is made and therefore, when accused has no audience at this stage of the matter, the applicant cannot insist to hear and decide applications Exhs.58 and 63 first.

12. Even otherwise, it is a matter of fact that though present applicant objected to application Exh.67 by submitting written objections on 17.12.2019 and 31.12.2019, the applicant proceeded with the hearing of applications Exhs.58 and 63 before then learned Special Judge and the said applications were kept for orders on various dates right from 5.11.2019 till 9.3.2020. At no point of time, he approached learned Sessions Judge for the nature of the prayer made in application Exh.132 though the fact situation as alleged in the application Exh.132 was in existence when application Exh.67 was filed, but only after then learned Special Judge got

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transferred and when question of fresh hearing of applications Exhs.58 and 63 arose, he moved application Exh.132 on 28.1.2021. In any case, without taking this aspect any further, it is quite evident that the applicant has NO SAY in the subject matter of application below Exh.67. As recorded herein above, there is no justification or any legal ground on the part of the applicant to move application Exh.132 on 28.1.2021 and such application is nothing but to seek audience in indirect manner in the matter of the proceedings u/s 306 of the Code, which is otherwise prohibited by law.

13. In the result, the Court is not inclined to interfere with the impugned order for the reasons recorded in the impugned order and present order and accordingly, present Criminal Revision Application being meritless, both on law and facts, stands rejected.

14. It is clarified that the observations made in the present order are purely tentative to decide the legality of order passed below application Exh.132 only.

(S.H.VORA, J) SHEKHAR P. BARVE