Karnataka High Court

Shivanand Shrishail Biradar vs Central Bureau Of Investigation on 24 March, 2023

Bench: K.Natarajan

                           1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 24TH DAY OF MARCH 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION NO.8369 OF 2022

BETWEEN

SHIVANAND SHRISHAIL BIRADAR
S/O SHRISHAIL BIRADAR
AGED 32 YEARS
R/O UMRANI VILLAGE
CHADCHAN TALUK VIJAYAPURA
KARNATAKA - 586 205                    ... PETITIONER

(BY SRI. SHIVAJI H. MANE, ADVOCATE)

AND

CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH
GANGANAGAR BELLARY ROAD
BENGALURU - 560032
REP BY THE STANDING COUNSEL
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
                                        ... RESPONDENT
(BY SRI PRASANNA KUMAR P, SPECIAL COUNSEL)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ORDER DATED 14.07.2022
PASSED BY THE LXXXI ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALURU (CCH-82) IN SPL.C.C.NO.565/2021 AND
MAY BE PLEASED TO GRANT OF PARDON TO THE
PETITIONER/ACCUSED NO.17 FOR THE ALLEGED OFFENCES
PUNISHABLE UNDER SECTIONS 120B READ WITH SECTIONS
302, 201, 143, 147, 148, 149 OF IPC AND SECTION 25 READ
WITH SECTIONS 3, 5, 8, 29 OF ARMS ACT.
                                   2


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.02.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:

                            ORDER

This petition is filed by the petitioner-accused No.17

under Section 482 of Cr.P.C. for setting aside the order

passed by the LXXXI Additional City Civil and Sessions

Judge, Bengaluru, in Spl.C.C.No.565/2021 for having

rejected the application filed by the petitioner under

Section 306 of Cr.P.C. seeking tender of pardon for the

offences punishable under Sections 120B read with

Sections 201, 302, 143, 147, 148, 149 of IPC and section

25 read with Sections 3, 5, 8 and 29 of Arms Act.

2. Heard the arguments of learned counsel for the

petitioner and the learned special counsel for the

respondent-Central Bureau of Investigation (CBI).

3. The case of the prosecution is that a case in

Crime No.135/2016 was registered by Dharwad Sub-Urban

Police on the complaint filed on 15.06.2016 lodged by the

mother of the deceased alleging that her son Yogesh

Goudar was shot dead on 15.06.2016 by unknown

persons. After registering the case, the police arrested

accused Nos.1 to 5 on 17.06.2016 and thereafter, they

filed charge sheet. Subsequently, investigation was taken

out by CBI and during further investigation, many number

of accused persons were arrested including the petitioner.

An additional charge sheet also came to be filed. One of

the accused was former MLA, who was sitting MLA at the

time of incident. Therefore, the case was transferred to

Special Court for trying the offences on the charge sheet

filed against the MLA and other persons. The CBI also

filed charge sheet against the petitioner as he was shown

as accused No.17 and he was released on bail.

4. During the pendency of the proceedings, before

the trial Court, the petitioner has filed an application under

section 306 of Cr.P.C seeking pardon which came to be

rejected by the trial Court . Hence, he is before this Court.

5. Learned counsel for the petitioner has contended

that the petitioner is arraigned as accused No.17 and

according to the allegation in the charge sheet, he has

given pistol to the main accused and now, the petitioner

wants to be approver and seeking to tender the pardon. In

spite of the statement of the learned counsel for CBI, that

the CBI has no objection, but the trial Court dismissed the

application which is not correct. The petitioner in his

application undertook to give evidence against the other

accused persons. Therefore, rejecting the application by

the trial Court, is not sustainable under law. Hence,

prayed for setting aside the order of the trial Court.

6. Per Contra, learned Special Counsel appearing for

the respondent-CBI has contended that even though the

CBI has no objection for extending the tender of pardon to

accused No.17, the trial Court rejected the application.

Even now, the CBI has no objection to allow the

application. However, it is contended that there shall be a

condition on the petitioner-accused that, if the petitioner

does not support the case, he shall be arraigned as an

accused and trial court can take action against him.

7. Having heard the arguments of learned counsel

for the parties, perused the records.

8. It is borne out from the records that the

respondent CBI filed additional charge sheet showing the

petitioner as accused No.17 and as per the allegation and

statement of C.W Nos.56 and 57, that this petitioner said

to be handed over 3 country made pistols, to C.W.57 at

the request of one Dharmaraj Chadchan who is said to

have instructed him to go to Shivananda Biradar who is

close relative of Dharmaraj Chadchan and gave a mobile

phone contact number of Chandu Goudar Savkar and

asked him to contact and collect a bag from Shivananda

Biradar. Then he informed his friend Suresh Jagdev Hulle

from Viajayapura district. Accordingly, he went to the

resident of Biradar and brought one bag and he along with

said Suresh gave a call to Chandu Goudar Savkar then

Suresh and met the Chandu Savkar and inturn they went

and met at Dharwad bus stand, then he found that bag

was containing country made pistols and Chandu took the

country made pistols. Thereafter, he went back. CW57

Suresh Hulle also given the statement. Now the case of

the prosecution is that the petitioner received the pistol

from one Suresh and got it from Biradar and handed over

to the accused for the purpose of committing the murder

of the deceased. Now the accused Nos. 7 and 10 seeking

pardon and he wanted to give the evidence against the

accused persons, at this State it is relevant to mention

Section 306 of Cr.P.C which is 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."

9. The Hon'ble Supreme Court held in a judgment

reported in AIR 1994 SC 2420 = 1995 SCC Suppl (1)

80 in case of Suresh Chandra Bahari Vs State of Bihar

which is held as under:-

"30. A bare reading of clause (a) of sub-

section (4) of Section 306 of the Code will go to show that every person accepting the tender of

pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to any one of the courts mentioned in clauses (i) or (ii) of clause

(a) of sub-section (5), as the case may be. Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that court. The examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in sub-section (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the committing Magistrate would not only amount to breach of the mandatory provisions contained in clause (a) of sub-section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all

stages. The breach of the provisions contained in clause (a) of sub-section (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, non-compliance of the same would render committal order illegal. The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing court itself at the very threshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial. It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable. Further clause (b) of sub-section (4) of Section 306 of the Code will also go to show that it mandates that a person who has accepted a tender of pardon shall,

unless he is already on bail be detained in custody until the termination of the trial. We have, therefore, also to see whether in the instant case these two mandatory provisions were complied with or not and if the same were not complied with, what is the effect of such a non-compliance on the trial?"

In another case Hon'ble Supreme Court held in the case of

PC Mishra Vs State CBI and Anr reported in (2014) 14

SCC 629, taken similar view and allowed the accused for

giving statement before the Magistrate.

10. The Hon'ble Supreme Court also held in case if

the petitioner or accused who seek pardon and he resciles

from the earlier statement and he can be dealt with as per

provisions of section 308 of Cr.P.C. Such being the case,

the trial court holding that, even if the statement is

recorded as a witness, it will not help to the case of

accused is not correct, since getting the pistol by the

accused persons was based upon the confessional