State vs Shri. Vijayan V.P
2021 Latest Caselaw 5834 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

   THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                      Crl.MC.No.5118 OF 2017(H)

    AGAINST THE ORDER IN CC 7/2007 OF SPECIAL C SPE/CBI-II&4
                 ADDITIONAL DISTRICT COURT,EKM

AGAINST THE ORDER/JUDGMENT IN CRMP 4683/2006 DATED 15-01-2007 OF
                CHIEF JUDL.MAGISTRATE, ERNAKULAM


PETITIONER:

               STATE,
               REPRESENTED BY JEEJO P JOSEPH, INSPECTOR OF POLICE,
               CBI/ACB/COCHIN

               BY ADV. SHRI.SASTHAMANGALAM S. AJITHKUMAR, SC,
               CENTRAL BUREAU OF INVESTIGATION

RESPONDENTS:

      1        SHRI. VIJAYAN V.P.,
               S/O. VELAYUDHAN NAIR, BIJU NIVAS, VALIYAPARAMBA,
               MUTHUVALOOR POST, KONDOTTY, MALAPPURAM DISTRICT,
               KERALA-679357.

      2        P.P. AHMED,
               S/O. HASSAN, PARAMBATHUPALLIYALIL HOUSE,
               KUMMINIPPARAMBU POST, KARIPPUR, CALICUT-673001.

      3        P.P. ABDUL RAHMAN,
               S/O. KAMMADUNNI, KUMMINIPARA HOUSE, KUMMINIPPARAMBU
               POST, KARIPPUR, CALICUT-673001.

               R1 BY ADV. SRI.K.K.ANIL KUMAR
               R1-3 BY ADV. SMT.R.LEELA

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD           ON
22.01.2021, THE COURT ON 18.02.2021 PASSED THE FOLLOWING:
 Crl.M.C.No.5118/2017
                                      2




                      R.NARAYANA PISHARADI, J
                      ************************
                        Crl.M.C.No.5118 of 2017
              -----------------------------------------------
               Dated this the 18th day of February, 2021


                                 ORDER

This is an application for sanction for prosecution filed under

the second proviso to Section 308(1) of the Code of Criminal

Procedure, 1973 (for short 'the Code').

2. The application is filed by the State which is

represented by the Inspector of Police, Central Bureau of

Investigation (CBI).

3. The respondents were accused 3, 7 and 6 in the case

registered as R.C.No.26(A)/2005/CBI/ACB/Kerala under Section

13(1)(d) read with 13(2) of the Prevention of Corruption Act,

1988 (for short 'the Act') and under Section 120B of the Indian

Penal Code.

4. It is not necessary here to narrate the details of the

prosecution case. Suffice it to state that the case related to Crl.M.C.No.5118/2017

receiving of bribe by the customs officers at Calicut Airport from

the passengers.

5. As per Annexure-A1 order dated 15.01.2007, the Chief

Judicial Magistrate, Ernakulam had granted pardon to the

respondents under Section 306 of the Code.

6. On the basis of the final report filed by the CBI,

cognizance of the offences mentioned above was taken by the

Special Court (SPE/CBI)-II, Ernakulam and the case was

numbered as C.C.No.7/2007. During the trial of the case, the

respondents were examined as PW1, PW2 and PW13. They did

not support the prosecution case during the trial. They were

declared hostile to the prosecution. They were cross-examined

by the Public Prosecutor with the permission of the court. The

case ended in the acquittal of the accused who faced the trial.

7. The Special Public Prosecutor, CBI has issued

certificate as contemplated under Section 308(1) of the Code in

respect of the respondents.

8. This application is filed by the State seeking sanction

for trying the respondents for committing the offence of giving Crl.M.C.No.5118/2017

false evidence.

9. Heard the learned Standing Counsel for the CBI and

also the learned counsel for the respondents.

10. Learned Standing Counsel for the CBI contended that

the respondents, who were granted pardon, violated the terms

and conditions of the pardon accepted by them. Learned

Standing Counsel submitted that the respondents deliberately did

not make a full and true disclosure of the whole circumstances of

the case within their knowledge relating to the offence and other

persons concerned during the trial of the case and they betrayed

the prosecution. Therefore, sanction is sought for prosecution of

the respondents for committing the offence of giving false

evidence.

11. Per contra, learned counsel for the respondents

contended that, after granting pardon to the respondents, they

were not examined under Section 306(4)(a) of the Code and

therefore, they are not liable to be tried for committing the

offence of giving false evidence.

12. Section 306(1) of the Code states that, with a view to Crl.M.C.No.5118/2017

obtaining the evidence of any person supposed to have been

directly or indirectly concerned in or privy to an offence to which

that 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.

13. Section 306(4)(a) of the Code states that, every person

accepting a tender of pardon made under sub-section (1) shall be

examined as a witness in the Court of the Magistrate taking

cognizance of the offence and in the subsequent trial.

14. Section 307 of the Code provides that, 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 Crl.M.C.No.5118/2017

directly or indirectly concerned in, or privy to, any such offence,

tender a pardon on the same condition to such person.

15. Section 308(1) of the Code provides that, where, in

regard to a person who has accepted a tender of pardon made

under Section 306 or Section 307 of the Code, the Public

Prosecutor certifies that in his opinion such person has, either by

wilfully concealing anything essential or by giving false evidence,

not complied with 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. The first proviso

to this section states that such person shall not be tried jointly

with any of the other accused and the second proviso to this

section states 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. Section 308(2) of the Code provides that,

any statement made by such person accepting the tender of Crl.M.C.No.5118/2017

pardon and recorded by a Magistrate Section 164 or by a

Court under sub-section (4) of Section 306 may be given in

evidence against him at such trial.

16. Section 308(1) of the Code empowers the Public

Prosecutor to certify that, in his opinion, an accused to whom

pardon has been granted, has wilfully concealed something

essential, or given false evidence and has, thereby, failed to

comply with the condition, subject to which pardon was granted

to him. On such certificate being issued by the Public Prosecutor,

the approver becomes liable to be tried for the offence in respect

of which he had earlier been granted pardon, as well as for any

other offence, of which he appears to have been guilty, and for

giving false evidence. But, sanction of the High Court is required

for trying such person for committing the offence of false

evidence.

17. An accomplice who has been granted pardon under

Section 306 or Section 307 of the Code gets protection from

prosecution. When he is called as a witness for the prosecution,

he must comply with the condition of making a full and true Crl.M.C.No.5118/2017

disclosure of the whole of the circumstances within his knowledge

concerning the offence and to every other person concerned,

whether as principal or abettor, in the commission thereof. The

legal position that flows from the provisions contained in Sections

306, 307 and 308 of the Code is that once an accomplice is

granted pardon, he stands discharged as an accused and

becomes witness for the prosecution. As a necessary corollary,

once the pardon is withdrawn or forfeited on the certificate given

by the Public Prosecutor that such person has failed to comply

with the condition on which the tender was made, he is reverted

to the position of an accused and liable to be tried separately.

18. The contention of the respondents is that, after

accepting pardon, they were not examined under Section 306(4)

of the Code and therefore, they are not liable to be tried for the

offence of giving false evidence. Learned counsel for the

respondents would contend that examination of an accomplice

under Section 306(4) of the Code is mandatory after granting

him pardon and unless such person is so examined, he cannot be

treated as a person who has been granted or who has accepted Crl.M.C.No.5118/2017

pardon.

19. In the instant case, pardon was granted to the

respondents under Section 306 of the Code and not under

Section 307 of the Code. Pardon was granted to them during the

investigation stage of the case by the Chief Judicial Magistrate.

Thereafter, they were not examined under Section 306(4) of the

Code at any stage.

20. Section 306(4) of the Code mandates the

examination, as a witness, of the person accepting pardon in the

Court of the Magistrate taking cognizance of the offence, as well

as in the subsequent trial, if any. In Re. Chief Judicial

Magistrate : 1988 Cri.L.J 812, it has been held that

examination under Section 306(4) of the Code, of the person

who has been granted pardon, is mandatory. This decision was

overruled by the Division Bench in State of Kerala v. Monu

Surendran (1990 (1) KLT 53) but the finding that, the

examination of the approver under Section 306(4) of the Code is

mandatory, was not disturbed. Monu Surendran (supra) itself

was overruled by the Full Bench of this Court in Asokan v. State Crl.M.C.No.5118/2017

of Kerala (2005 (3) KLT 770).

21. In Suresh Chandra Bahri v. State of Bihar : AIR

1994 SC 2420, it has been held as follows:

"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. Thus 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."

Crl.M.C.No.5118/2017

22. In Deivendran v. State of Tamil Nadu : AIR 1998

SC 2821, it was held that, in a case exclusively triable by the

Court of Session, if an accused is tendered pardon and is taken

as an approver before commitment, then compliance of sub-

section (4) of Section 306 of the Code becomes mandatory and

non-compliance of such mandatory requirements would vitiate

the proceedings but if an accused is tendered pardon after the

commitment by the Court to which the proceeding is committed

in exercise of powers under Section 307 of the Code, then in

such a case the provisions of sub-section (4) of Section 306 of

the Code are not attracted. It was held that the procedural

requirement under clause (a) of sub-section (4) of Section 306 of

the Code to examine the accused after tendering pardon cannot

be held to be a condition of grant of pardon.

23. However, in State of Himachal Pradesh v. Surinder

Mohan : AIR 2000 SC 1862, it was held that a belated

objection by the defence regarding non-examination of the

approver under Section 306(4) of the Code cannot be accepted. Crl.M.C.No.5118/2017

24. In State v. Jagjit Singh : AIR 1989 SC 598, it has

been held that the approver to whom pardon has been granted

shall be examined as a witness both in the committing court as

well as in the trial court. It was held that the State cannot

withdraw the pardon from the approver nor the approver can

cast away the pardon granted to him till he is examined as a

witness by the prosecution both in the committing court as well

as in the trial court.

25. The decision in Jagjit Singh (supra) has no

application to the facts of the present case. It was a case in

which the approver did not support the prosecution during his

examination before the Magistrate under Section 306(4) of the

Code and thereafter he raised a contention that he was not liable

to be examined as a witness for the prosecution during the trial

of the case. The Apex Court rejected this contention and held

that an approver has to be examined both in the committing

court as well as the trial court and only thereafter, pardon

granted to him can be withdrawn by the State and that the

approver cannot cast away the pardon granted to him till he is Crl.M.C.No.5118/2017

examined as a witness by the prosecution during the trial of the

case.

26. Before proceeding further, it is pertinent to note that

though the present case was one not exclusively triable by the

Court of Session but by a Special Judge under the Prevention of

Corruption Act, pardon was granted to the respondents under

Section 306 of the Code and not under Section 307 of the Code,

during the investigation stage.

27. During the investigation of a case, which is triable by a

Special Judge under the Act, the Special Judge as well as the

Magistrate acting under Section 306 of the Code have concurrent

jurisdiction to grant pardon (See P.C.Mishra v. State : AIR

2014 SC 1921 and State v. Arul Kumar: AIR 2016 SC 2551).

28. When pardon is granted by the trial court under

Section 307 of the Code, examination of the approver under

Section 306(4) of the Code is not necessary (See Santosh

Kumar v. State of Maharashtra : (2009) 6 SCC 498 and

Narayan Chetanram Choudhary v. State of Maharashtra :

AIR 2000 SC 3352).

Crl.M.C.No.5118/2017

29. Non-examination of the respondents under Section

306(4) of the Code did not affect their status as approvers or

persons who had been granted pardon. The scheme of the

provisions relating to granting of pardon contained in Sections

306 to 308 of the Code would show that there is no legal basis

for the contention raised by the learned counsel for the

respondents in this regard. The provisions contained in Section

308 of the Code are applicable to a person who has been granted

pardon not only under Section 306 of the Code but also under

Section 307 of the Code. In many cases, where pardon is

granted under Section 307 of the Code, the approver will be

examined only during the trial of the case and there will not be

an examination of him under Section 306(4) of the Code. This

gives an indication that non-examination of the approver under

Section 306(4) of the Code does not render the order granting

him pardon illegal or void and that it does not affect his status as

an approver.

30. In Deivendran (supra), the Apex Court has held as

follows:

Crl.M.C.No.5118/2017

"The next question that arises for consideration is as to whether non-examination of the approver as a witness after grant of pardon and thereby non- compliance of sub-section (4)(a) of Section 306 vitiates the entire proceeding. In the case in hand there is no dispute that after the Chief Judicial Magistrate granted pardon to the accused he was not examined immediately after the grant of pardon and was only examined once by the learned Sessions Judge in course of trial. The question that arises for consideration is : when an accused is granted pardon after the case is committed to court of session would it be necessary to comply with sub-section (4)(a) of Section 306 of the Code. ..... The correctness of the rival submissions again would depend upon true interpretation of Sections 306 and 307 of the Code. Under Section 307 when pardon is tendered after commitment of the proceedings by the Court to which the commitment has been made the legislative mandate is that the pardon would be tendered on the same condition. The expression "on the same condition" obviously refers to the condition of tendering a pardon engrafted in sub- section (1) of Section 306, the said condition being the person concerned on making a full and true disclosure of the whole of the circumstances Crl.M.C.No.5118/2017

within his knowledge relating to the offence. Sub- section (4) of Section 306 cannot be held to be a condition for tendering pardon. A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of sub-section (4) of Section 306 are not attracted. The procedural requirement under sub-section (4)(a) of Section 306 to examine the accused after tendering pardon cannot be held to be a condition of grant of pardon. ..... when the legislature in Section 307 have made specific reference to only on "such conditions" and not to the other procedures in Section 306 it would not be a rule of interpretation to hold that even sub- section (4)(a) of Section 306 would also be applicable in such a case".

Crl.M.C.No.5118/2017

31. The decision in Deivendran (supra) is authority for

the proposition that sub-section (4) of Section 306 of the Code

cannot be held to be a condition for tendering pardon.

32. In Dineshkumar @ Deena v. State : AIR 2015 SC

1816, the Supreme Court allowed the trial court to grant pardon

under Section 307 of the Code to a witness already examined by

the prosecution and to examine him afresh in the case.

33. The power to tender pardon is not controlled by sub-

section (4) or (5) of Section 306 of the Code. These sub-sections

deal with the matters pertaining to post pardon stage. Under

Section 306 of the Code, the power to tender pardon stands

alone and others are matter of procedure. If in such situation,

the matters of procedure are not applicable, it would not negate

the power to grant pardon. Insofar as procedural matters are

concerned, the same apply to the extent applicable (See

Harshad S.Mehta v. State of Maharastra: AIR 2001 SC

3774).

34. Learned counsel for the respondents would invite the

attention of this Court to the provision contained in Section Crl.M.C.No.5118/2017

308(2) of the Code in support of her contention. It provides

that, any statement made by a 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 of the Code may be

given in evidence against him at the trial against him. This

provision is not concerned in any way with the legality of the

pardon accepted by or granted to a person under Section 306 of

the Code. It is only a provision which deals with the admissibility

in evidence of the statement of an approver recorded under

Section 164 or under Section 306(4) of the Code in a trial against

him.

35. The discussion above leads to the following

conclusions. Examination under sub-section (4) of Section 306

of the Code of a person who has been granted pardon is only a

matter of procedure. It is not a condition of granting pardon to

an accomplice. Non-examination of an approver under sub-

section (4) of Section 306 of the Code does not affect the validity

of the order granting pardon. It does not render such order illegal

or void. It does not affect the status of the person who has Crl.M.C.No.5118/2017

been granted or who has accepted pardon. The fact that, in a

case exclusively triable by the Court of Session, non-examination

of an approver under Section 306(4) of the Code may vitiate the

trial of the case, is not a sufficient ground to find that it is a

matter that affects the validity of the order granting pardon to

such person.

36. However, in the instant case, whether sanction for

prosecution of the respondents for committing the offence of

giving false evidence has to be granted or not, is a different

question. The discretion vested in the High Court to grant

sanction for the prosecution of an approver for the offence of

giving false evidence must be exercised with extreme caution

(See State v. Atma Ram : AIR 1966 HP 18). It sometimes

happen that, when an investigating officer is confronted with a

weak case, in his misplaced zeal, he attempts to bolster it by

getting hold of an approver. If there is any such indication in the

circumstances of a particular case, sanction ought not to be given

(See State v. Dial Singh : AIR 1958 PH 310). Crl.M.C.No.5118/2017

37. The first respondent was a person working as

contingent labourer in the Calicut Airport. The second respondent

was a taxi driver in the airport. The third respondent was a

person who was conducting business in exchange of foreign

currency near the Calicut Airport. According to the prosecution

case, it was through the respondents that the money collected as

bribe from the passengers was distributed among the customs

officers.

38. Though no statement under Section 306(4) of the

Code of the respondents was recorded, before granting pardon to

them, their confession statements had been recorded by the

Judicial First Class Magistrate concerned under Section 164 of the

Code.

39. The respondents 1 to 3 were examined as PW13, PW2

and PW1 respectively during the trial of the case. Then, the

Public Prosecutor cross-examined them with the permission of

the court and they were confronted with the statements given by

them to the investigating officer and also with the confession

statement made by them before the Judicial First Class Crl.M.C.No.5118/2017

Magistrate under Section 164 of the Code. With regard to the

confession statement, during the trial of the case, each of the

respondents admitted giving such statement before the

Magistrate but deposed that such statement was given under the

threat of the CBI officers. In effect, they retracted the confession

made by them before the Judicial First Class Magistrate under

Section 164 of the Code.

40. A confession statement under Section 164 of the Code

is not a statement made on oath. Taking statement on oath of an

accused is prohibited (See Babubhai v. State of Gujarat : AIR

2007 SC 420).

41. A statement made by an approver, in order to come

within the purview of Section 308(2) of the Code, must be a

statement made by him after granting pardon and not before

(See Miral v. Emperor : AIR 1943 Sind 166).

42. In the instant case, in the absence of any previous

statement on oath made by the respondents, it would be difficult

to find that the statement made by them during the trial of the

case is false. True, giving false evidence can be proved in any Crl.M.C.No.5118/2017

other manner than with reference to a statement on oath. But, it

would be a difficult task.

43. Moreover, the CBI has not produced copy of the

judgment of the trial court acquitting the accused in the case. In

the absence of the judgment of the trial court, this Court is not in

a position to ascertain whether the prosecution case against the

other accused was mainly based on the evidence to be given by

the respondents as approvers and whether the acquittal of the

accused was mainly for the reason that the respondents did not

support the prosecution case. The salutary principle of tendering

pardon to an accomplice is to unravel the truth in a case of grave

offence so that the guilt of the other accused in the commission

of the crime could be brought home. In the instant case, there is

no material produced before this Court to find out what

observations or findings have been made by the trial court with

regard to the evidence given by the respondents during the trial

of the case.

44. In the aforesaid circumstances, I find that it not

expedient to grant sanction for prosecution of the respondents Crl.M.C.No.5118/2017

for committing the offence of giving false evidence. In the

absence of any previous statement on oath made by the

respondents before the trial of the case, it would be very difficult

to prove that they committed perjury. The chances of a

conviction against the respondents are very bleak and trial of a

case against them for committing the offence of giving false

evidence would be a wastage of precious judicial time. In these

circumstances, the petition is liable to be dismissed.

45. Consequently, the prayer for granting sanction for

prosecution of the respondents for committing the offence of

giving false evidence is rejected and the petition is dismissed.

However, it is made clear that this order will not preclude the

State from trying the respondents for the offences in respect of

which pardon was tendered to them.

(sd/-) R.NARAYANA PISHARADI, JUDGE jsr Crl.M.C.No.5118/2017

APPENDIX PETITIONER'S EXHIBITS:

ANNEXURE A1 ORDER DATED 15/01/2007 PASSED IN CRL.

MP NO. 4683/2006 (RC 26(A)/2005/SPE/KERALA)

ANNEXURE A2 STATEMENT OF V P VIJAYAN RECORDED U/S.

164 CR. PC.

ANNEXURE A2(A) STATEMENT OF P.P. AHAMED RECORDED U/S.

164 CR. PC.

ANNEXURE A2(B) STATEMENT OF ABDUL RAHIMAN RECORDED U/S. 164 CR. PC.

ANNEXURE A2(C) STATEMENT OF V P VIJAYAN RECORDED U/S.

306(4) CR. PC.

ANNEXURE R2(D) STATEMENT OF AHAMED RECORDED U/S.

306(4) CR. PC.

ANNEXURE A2(E) STATEMENT OF ABDUL RAHIMANRECORDED U/S.

306(4) CR. PC.

ANNEXURE A3 COPY OF DEPOSITION OF PW 13 VIJAYAN IN CC 7/2007.

ANNEXURE A3(A) COPY OF DEPOSITION OF PW 2 AHAMED IN CC 7/2007.

ANNEXURE A3(B) STATEMENT OF PW 1 ABDUL RAHIMAN TENDERED IN CC 7/2007.

ANNEXURE A4 COPY OF PETITION FILED U/S. 308 CR.

P.C. AGAINST VIJAYAN V.P.

ANNEXURE A4(A) COPY OF CERTIFICATE OF PROSECUTOR CERTIFYING THAT V.P. VIJAYAN HAS WILLFULLY CONCEALED ESSENTIAL FACTS AND TENDERED FALSE EVIDENCE.

Crl.M.C.No.5118/2017

ANNEXURE A5 TRUE COPY OF PETITION FILED U/S. 308 CR. PC BY PROSECUTION TO PROSECUTE P.P.

ABDU RAHIMAN.

ANNEXURE A5(A) TRUE COPY OF CERTIFICATE ISSUED BY PROSECUTOR THAT TENDERED FALSE EVIDENCE PW1.

ANNEXURE A6 COPY OF PETITION FILED BY PROSECUTION U/S. 308 CR.PC TO PROSECUTE P.P. AHAMED

-A PW-2.

ANNEXURE A6(A) COPY OF CERTIFICATE ISSUED BY PROSECUTOR STATING PW-2 P.P. AHAMED TENDERED FALSE EVIDENCE.

RESPONDENTS' EXHIBITS        :     NIL



                       TRUE COPY

                                              PS TO JUDGE