Pradeep Nirankarnath Sharma vs State Of Gujarat
2023 Latest Caselaw 5748 Guj

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     R/CR.RA/983/2023                        JUDGMENT DATED: 08/08/2023

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  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


 R/CRIMINAL REVISION APPLICATION NO. 983 of 2023


FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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       Whether Reporters of Local Papers may be allowed
 1                                                                  NO
       to see the judgment ?
 2 To be referred to the Reporter or not ?                         YES
   Whether their Lordships wish to see the fair copy of
 3                                                                  NO
   the judgment ?
   Whether this case involves a substantial question of
 4 law as to the interpretation of the Constitution of              NO
   India or any order made thereunder ?

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                  PRADEEP NIRANKARNATH SHARMA
                              Versus
                        STATE OF GUJARAT

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Appearance:
MR LAKSHIT V PATEL(10734) for the Applicant(s) No. 1
MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
MR MITESH AMIN, PP with MS JIRGA JHAVERI, APP for the
Respondent(s) No. 1

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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 08/08/2023

                           ORAL JUDGMENT

1. Rule. Learned Additional Public Prosecutor waives service

for the respondent - State.

2. The revisionist is challenging the order dated 27.07.2023,

passed by the learned Special Sessions Judge, Ahmedabad (Rural) at

Mirzapur, whereby, the learned Special Sessions Judge has exhibited

the Statement of PW-3, recorded of witness - approver - Asimkumar

Niranjanbhai Chakravarti. The prayer is made to quash and set

aside the said order of exhibiting the statement at exhs. 231 and 233

in Special Sessions Case Nos. 187 of 2017, 192 of 2017 and 194 of

2017.

3. The impugned order has been passed in the deposition of PW-

3, which is exhibit 230.

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4. Learned advocate Mr. R. J. Goswami submitted that the

revisionist, presently, is in the judicial custody and facing trial in

connection with three sessions cases, which are Scheduled Offences,

before the learned Special Sessions Judge, Ahmedabad (Rural) at

Mirzapur. The details of the case as per the petition are as under:

1. Sessions Case No. 187 of 2017 (main case) (I-C.R. No. 3 of 2010, registered with CID Crime, Rajkot Zone Police Station)

2. Sessions Case No. 192 of 2017

3. Sessions Case No. 194 of 2017

4.1 The offences have been transferred to PMLA Court since

being Scheduled Offences in PMLA Case No. 2 of 2016 and

subsequent PMLA case No. 18 of 2018.

4.2 The offence under Money Laundering Act, has been registered

against the present applicant before the Special Court, Ahmedabad

(Rural) and therefore, the Scheduled offence came to be transferred

in the said Court. The applicant had preferred discharge application

in PMLA Case No. 2 of 2016, which came to be dismissed and

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thereafter, approached this Court by filing Criminal Revision

Application No. 66 of 2018 and the same came to be dismissed on

14.03.2023 and this Court directed to proceed with the trial on day-

to-day basis.

4.3 Learned advocate Mr. Goswami submitted that co-accused -

Asimkumar Niranjanbhai Chakravarti filed applications under

Section 306 of the Criminal Procedure Code, 1973 (CrPC) to

become an approver in Sessions Case No. 187 of 2017, below exh.

119 and in Sessions Case No. 186 of 2017, below exh. 113. The

said applications came to be allowed by an order dated 24.04.2023

and the accused - approver was directed to remain present before the

learned Chief Judicial Magistrate on 27.04.2023. The learned Chief

Judicial Magistrate Court was also directed to record the statement

of the accused - approver under Section 164 CrPC by the same order

dated 24.04.2023.

4.4 As per the revisionist, the Sessions Case No. 186 of 2017, was

registered against Asimkumar Niranjanbhai Chakravarti, as a

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subsequent Charge-sheet of Sessions Case No. 194 of 2017, and

since he was made an approver, and thus, it is stated by the

revisionist that the said Sessions Case No. 186 of 2017 against the

approver - Asimkumar Niranjanbhai Chakravarti stood as over.

4.5 Learned advocate Mr. Goswami submitted that at present

challenge is against the order of the learned Special Sessions Judge

exhibiting the statement recorded of the approver under Section 164

CrPC in a sessions trial, since the accused was not granted an

opportunity to cross-examine the statement recorded under Section

164 CrPC before the learned Chief Judicial Magistrate, the same

cannot be exhibited in the trial. Learned advocate Mr. Goswami has

relied upon the decision of the Division Bench of this Court in

Rajkumar Sangaiah Pandiyan v. State of Gujarat and 3, 2010 SCC

OnLine Guj 12540.

4.6 Countering the arguments, learned Public Prosecutor

Mr. Amin submitted that the provisions under Sections 306 and 307

CrPC are with different objects and are independent. The right, as

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contemplated under Section 307 CrPC, is totally independent and

states that the learned Special Sessions Judge was not even required

to send for recording of the statement before the learned Chief

Judicial Magistrate. It is stated that rigors of Section 306 CrPC

would not be made applicable to the procedure adopted by the

learned Special Sessions Judge under Section 307 CrPC and in

support of the submission, the learned Public Prosecutor has relied

upon a decision of the Hon'ble Supreme Court in Santosh Kumar

Satishbhushan Bariya v. State of Maharashtra, with State of

Maharashtra v. Sanjeevkumar Mahendraprasad Roy and Another,

(2009) 6 SCC 498, wherein, while considering the provisions of

Section 306(4) CrPC, in paragraph 34, it is observed as under:

"34. Sub-section (4) of Section 306 is procedural in nature. It is necessary to be followed only by a Magistrate as he would not have any jurisdiction to try the case himself. The learned Sessions Judge before whom the case is committed for trial must be informed as to on what basis pardon had been tendered. Section 307 does not contain any such condition.

The power of the learned Sessions Judge is independent of the provisions contained in Section 306 thereof. The condition mentioned in Section 307 refers to the condition laid down in sub-section (1) of Section 306, namely that the person in whose favour the pardon has been tendered, will make a full and true disclosure of the whole of the circumstances within

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his knowledge. The power of a Sessions Court is not hedged with any other condition."

4.7 On the other hand, learned advocate Mr. Goswami has placed

reliance on the concluding paragraph 55 of the decision of this Court

in CBI v. N. K. Amin and 3, 2010 SCC OnLine Guj 11728, which is

extracted herein below:

"55. .In view of the aforesaid observations and discussions, the conclusion can be deduced as under :-

(a) Section 306 of Cr.P.C., is clear in itself and in view of the various decisions of the Apex Court and also of the other High Courts, including the view expressed by us while interpreting Section 306 of Cr.P.C., there is no unguided or arbitrary power vested to the learned Magistrate but are rather for advancement of the interest of justice.

(b) The say of the other co-accused is not required to be considered, nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon after hearing a person applies for pardon and the prosecution or the investigating machinery but all the co-accused will have a right to cross-examination to the accomplice witness if his statement is recorded before the learned Magistrate and will have further right of cross-examination if such evidence is thereafter used by the prosecution at the time of trial for supporting its case or otherwise at the appropriate stage.

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(c) The learned Magistrate under Section 306 of Cr.P.C., is required to decide the application made by the A-12, keeping in view the observations made by us in the above referred judgement and more particularly by maintaining the spirit of advancement of interest of justice and in accordance with law.

(d) The impugned order for making reference by the learned Magistrate is by way misdirection of the exercise of power and condition for making reference have not been satisfied."

4.8 The bone of contention raised is to the right of the accused to

cross-examine the co-accused, whose statement gets recorded under

Section 164 CrPC as an approver. Learned advocate Mr. R. J.

Goswami would submit that while statements are recorded by the

learned Magistrate then in accordance with the decision in N. K.

Amin (supra), the accused would have a right to cross-examine the

accomplice when his statement is being recorded under Section 164

CrPC.

4.9 While against that, learned Public Prosecutor Mr. Amin stated

that present case would fall under Section 307 CrPC, where the co-

accused has been permitted to be examined as an approver and

submits that Section 307 CrPC is invocable at post-commitment

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stage, while the provisions of Section 306 CrPC would be applied

only at a pre-commitment stage and while granting pardon under

Section 307 CrPC, the trial Court is obliged to comply only the

requirements of Section 306(1) CrPC and has not to follow Section

306(4) CrPC. For that submission, learned Public Prosecutor

Mr. Amin has placed reliance upon a decision in Narayan

Chetanram Chaudhary and Another v. State of Maharashtra,

(2000) 8 SCC 457.

5. Admitted position in the present matter is that the learned

Special Sessions Judge, while allowing the applications exhs. 113

and 119 of accused - Asimkumar Niranjanbhai Chakravarti in

Sessions Case Nos. 186 and 187 of 2017 respectively, by reasoned

orders, permitted him to be an approver. The applicant - accused

had filed application exh. 167 making a prayer to the Court to give

him audience to be heard, which was rejected. The learned Special

Sessions Judge, having tendered pardon, further directed Asimkumar

Niranjanbhai Chakravarti to remain present before the learned Chief

Judicial Magistrate on 27.04.2023 and the learned Chief Judicial

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Magistrate was requested to record the statement under the

provisions of Section 164 CrPC. The pardon granted, is to be

considered under Section 307 CrPC, though the order impugned

refers as Section 306.

5.1 The challenge is given to the said statement under Section 164

CrPC of the approver being exhibited during the course of recording

of the evidence in the trial on the ground that the accused was not

granted an opportunity to cross-examine the accomplice while the

statement was recorded before the learned Chief Judicial Magistrate.

5.2 In Krishna Lal Gulati v. State, 1976 CrLJ 1825, it has been

noted that recording of statement of a person who is to be pardoned,

before granting him pardon, is not illegal, in paragraph 18, it is

observed as under:

"Section 307 itself contemplates some sort of statement for reducing in writing as is indicated by the words, "full and true disclosure". This may be made anterior to the inquiry, viz.

before the Committing Magistrate and can be made at the stage of inquiry or at the stage of trial. It is the disclosure inducing the pardon which is the statement referred to in

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Section 308. The pardon may be offered before any inquiry has been commenced or at the trial. Section 308, Cr. P.C. makes by necessary implication a statement of this nature an exception to the rule of evidence enacted in Section 24, Evidence Act as far as that section excludes confessions made as a result of the inducement of pardon. In view of this, recording a statement of a person who is to be pardoned before granting him pardon is not illegal."

5.3 In State v. Bigyan Mallik, 1975 CrLJ 1937, of Orissa High

Court, phrase "Tender a pardon on the same condition" as employed

in Section 307, has been explained. The Court was dealing with the

provisions of Section 306(4)(a) CrPC, wherein, it has been observed

as under:

"The phrase "same condition" in Section 307 obviously makes reference to Section 306(1) under which the Magistrate may tender a pardon to the person supposed to have been concerned in an offence on condition of his making a full and true disclosure. The requirement of Section 306(4) (a) that the person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate and in the subsequent trial, if any, is not a condition subject to which pardon is granted. When pardon has been given by the Sessions Judge under Section 307, it is not necessary to comply with the requirement of Section 306(4) in so far as it requires that the person to whom pardon has been tendered should be examined as a witness in the Court of the Magistrate taking cognizance of the offence and also in the subsequent trial if any."

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5.4 In K. Anil Kumar and Others v. State of Kerala, 1996 CrLJ

1942, the Kerala High Court has dealt with the provisions of Section

164 read with Section 307 CrPC regarding powers of Court of

Sessions and it was held that, "the only condition which is contained

in Section 307 is that 'the person to whom pardon is granted, should

make a full and true disclosure 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". It was noted that recording of statement under Section 164

is not a condition for granting pardon.

5.5 In Ashok Kumar Aggarwal v. CBI, 2001 CrLJ 3710, the

Delhi High Court, in connection with Section 307 CrPC, has

observed that, "When an accused applies for pardon and the

prosecution also supports him, the matter remains between the

Court and the accused applying for pardon and the other accused

have no right whatsoever to intervene or ask for hearing. The other

accused against whom evidence of the approver is likely to be used

shall have sufficient opportunity to cross-examine the approver

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when examined in the course of trial can show to the Court that his

evidence is not reliable or he is not a trustworthy witness. The law

does not prohibit tender of pardon to a principal accused even. The

tender of pardon remains within the domain of judicial discretion of

the Court before which the request of an accused for tender of

pardon is made. Therefore, a co-accused cannot be permitted to

raise objections against tender of pardon to another accused at

investigation stage."

5.6 The issue which came for consideration before the Delhi High

Court was that the Special Judge had power to pardon at the

investigation stage that before filing of Charge-sheet and it was held

that, "the Special Judge is enjoined with both the powers as of

Special Judge as well as the Magisterial Court for the purpose of

the offences under the Prevention of Corruption Act and that the

Special Judge conducts entire proceedings against an accused from

the date of his arrest till the final conclusion of the trial and Section

5(2) of the PC Act in no way restricts the power of the Special Judge

in a matter of tender of pardon at any stage of the proceedings". It

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was further held that, "If the legislature had intended to do so, it

could have specifically laid down in Section 5(2) of the PC Act that

a Special Judge, after filing of the Charge-sheet only may tender

pardon to a person concerned with the offence". It was also

observed that, "Tender of pardon at the stage of investigations is

more meaningful and result oriented for the investigators.

Therefore, the Special Judge has powers to record the statement of

an accused and tender him pardon before filing of the Charge-

sheet". Thus, it was noted that, "Special Judge trying offences

under the Act has dual powers of Sessions Judge as well as of

Magistrate and controls and conducts the proceedings under the

Code prior to filing of the Charge-sheet as well as after the filing of

the Charge-sheet for holding trial. The Special Judge, by virtue of

Section 5(2) of the Act enjoys powers contained in Section 306 as

well as Section 307 of the Code".

5.7 In Narayan Chetanram Chaudhary and Another (supra), as

relied upon by the learned Public Prosecutor, the Hon'ble Supreme

Court was dealing with Sections 306 and 307, wherein, it has been

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observed that, statement of approver on tender of pardon by trial

Court, lays down obligations for the compliance with the

requirements that the Court would direct tender of pardon on the

condition that the accused, who prays for being an approver, would

make full and true disclosure of 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. There is no legal obligation on the trial Court or a right in

favour of the accused to insist for the compliance with the

requirements of Section 306(4) i.e. for examining the accomplice as

a witness in the Court again. Section 307 does not contemplate

recording of the statement twice, first by the Magistrate and

subsequently, by the trial Court after committal of case. The

referred decision herein, makes distinction between the provisions of

Sections 306 and 307 CrPC. Section 307 is invocable at post-

committal stage, while Section 306 is invocable at the pre-committal

stage and when pardon is granted under Section 307, the trial Court

is required to comply Section 306(1) CrPC, which insists to make

full and true disclosure as contemplated in Sub-section (1) of Section

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306. Section 307 provides a complete procedure for recording the

statement of accomplice, subject to complying the condition

prescribed in Section 306(1). The decision in Narayan Chetanram

Chaudhary and Another (supra), clarifies that, once pardon is

tendered by the trial Court, there is no legal obligation on the trial

Court or the right in the favour of the accused, to insist for

compliance of Section 306(4) CrPC.

5.8 Mr. Goswami has heavily placed reliance on conclusion in

clause (b) of Paragraph 55, as laid down in the decision in N. K.

Amin (supra). The said clause is again reproduced herein below:

"(b) The say of the other co-accused is not required to be considered, nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon after hearing a person applies for pardon and the prosecution or the investigating machinery but all the co- accused will have a right to cross-examination to the accomplice witness if his statement is recorded before the learned Magistrate and will have further right of cross- examination if such evidence is thereafter used by the prosecution at the time of trial for supporting its case or otherwise at the appropriate stage.

5.9 The reading of the said conclusion is with the finding that the

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say of the co-accused is not required to be considered nor does the

accused have any role to play when the question is to be considered

by the learned Magisterial for the grant of pardon after hearing a

person who applies for pardon. The finding thus, gives a right to the

co-accused to cross-examine the accomplice witness, if his statement

is recorded by the learned Magistrate and further, clarifies that the

co-accused would have a further right if such evidence is thereafter

being used by the prosecution at the time of the trial for supporting

its case or otherwise at any appropriate stage.

5.10 The Division Bench was dealing only with the provisions of

Section 306 CrPC. Section 307 was not dealt with in N. K. Amin

(supra). During the course of recording of evidence by the learned

Magistrate of the person, who is to become an approver witness, the

co-accused would have no right to have his say. The statement so

recorded has to be put in evidence and that, accomplice witness

would be examined during the trial and it is only during this course

of examination of the accomplice witness, the co-accused would

have the right to cross-examine him. Once, the accused is granted

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pardon under Section 306 / 307 CrPC, he ceases to be an accused

and becomes a witness for the prosecution.

5.11 Here, in the present case, the order of tendering pardon was by

the trial Court i.e. learned Special Sessions Judge, which is to be

considered under Section 307 CrPC. The provision under Section

307 CrPC itself makes it clear that, at any time, after commitment of

case and before judgment is passed, the Court to which the

commitment is made, 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. The expression, "on the same

condition", is related to Section 306(1) CrPC and the only condition

that would be applicable while tendering pardon in Section 307 is,

assurance of full and true disclosure by the accused as provided

under Section 306(1). Section 307 does not even provide for

recording of any statement under Section 164 CrPC. The trial Court,

after committal of case, at post-cognizance stage, can tender pardon

to a person supposed to have been directly or indirectly concerned

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in, or privy to, to any such, with a view to obtain at the trial the

evidence of such person. If the person tendered pardon fails to

comply with the condition as laid down in Section 306(1) CrPC,

then such person, would be subjected to trial in accordance to

Section 308 CrPC.

5.12 In this case, it appears that out of utter caution and providing

an opportunity to the accused of having a statement of the

accomplice prior to him being examined in the Court, was the only

intention which had weighed in the mind of the trial Court, while

directing the accomplice to appear before the learned Chief Judicial

Magistrate for recording of his statement under Section 164 CrPC.

Section 307 does not contemplate the same, there would not be any

right of the accused to cross-examine the accomplice while the

statement being recorded under Section 164 CrPC by the learned

Chief Judicial Magistrate. The only procedural aspect which is to be

followed by the learned Chief Judicial Magistrate is the direction of

the Special Court for recording the statement under Section 164

CrPC. The said statement was, thereafter, produced before the trial

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Court and during the course of evidence of the approver, the same

was put in evidence. The copy of the statement recorded under

Section 164 CrPC was handed over to the accused prior to

approver's examination and the learned Judge, while noting the

objection so raised against taking the statement in evidence, has also

noted the said fact. Section 307 provides a complete procedure for

recording the statement of an accomplice subject only to the

compliance with the conditions specified in Section 306(1). Section

306(4) is procedural in nature, it is to be followed by a Magistrate as

he would not have any jurisdiction to try the case himself. While

power of the Sessions Judge is independent of the provisions

contained in Section 306. The expression "same condition" in

Section 307 is the condition referred in Section 306(1), to grant

pardon to accomplice making of full and true disclosure of the whole

of the circumstances within his knowledge. The accused in the

cross-examination of the approver, during the trial, can show to the

Court that approver's evidence is not reliable and he is not a

trustworthy witness. The right to cross-examination and to bring on

record the contradiction and of inconsistency has not been curtailed

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by the learned Special Sessions Judge and has been rightly observed

that the defence would have an opportunity to cross-examine the

approver and that the recording of the statement and its exhibiting

the same during the course of trial would not create any prejudice to

the defence of the accused.

6. This Court is of the opinion that the learned trial Court has

rightly rejected the objection so raised and the statement of the

approver recorded under Section 164 CrPC, has been marked as

exhibit during the trial, which rather, would ensure that the accused

would have a pre-recorded statement of the accomplice for the

accused to challenge the same. There is no illegality or impropriety

in the order so challenged. Thus, the revision application stands

rejected. Rule is discharged.

[ Gita Gopi, J. ] hiren /PC-22