Suresh Raj vs National Investigation Agency
2022 Latest Caselaw 6720 Ker

                                                          'C.R.'
        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
       THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                &
        THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
 TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                   CRL.A NO. 213 OF 2022
 AGAINST THE ORDER DATED 17.1.2022 IN CRL.MP NO.252/2021
 IN R.C.NO.01/2021/NIA/KOC OF SPECIAL COURT FOR TRIAL OF
                    NIA CASES,ERNAKULAM
APPELLANT/A6:

         SURESH RAJ
         AGED 40 YEARS, S/O.ARASIRATNAM,
         NO.126-8TH CROSS STREET, SAMAYAPURAM, IRANDAM,
         KATTALAI, KUNDRATHUR, CHENNAI - 69 (NOW INMATE
         NO.551 AT CENTRAL PRISON & CORRECTIONAL HOME,
         TRISSUR, PIN - 680010)
         BY ADV SANGEETHA LAKSHMANA


RESPONDENT/COMPLAINANT:

         NATIONAL INVESTIGATION AGENCY - KOCHI,
         28/443, GIRI NAGAR, KADAVANTHRA, ERNAKULAM -
         682 020 [REPRESENTED BY SPECIAL PUBLIC
         PROSECUTOR, NIA, KOCHI]
         BY ADVS.
         MANU S., ASG OF INDIA()
         SINDHU RAVISHANKAR(K/1152-A/1999)
         SMT.MINI GOPINATH, CGC(CG-375)


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.5.2022,   THE   COURT   ON       14.06.2022,   DELIVERED   THE
FOLLOWING:
 Crl A.213/2022

                                        2


                                                                    'C.R.'
                 K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
                  ------------------------------------
                      Crl. Appeal No.213 of 2022
                  -------------------------------------
                  Dated this the 14th day of June, 2022

                                J U D G M E N T

Jayachandran, J.

1. Whether a Special Court constituted under the

National Investigation Agency Act, 2008 can invoke the

powers under Section 306 of the Code of Criminal Procedure

to grant pardon to an accused at the post cognizance

stage, is the issue posed by the appellant in this appeal.

The incidental issue, which pops up, is whether pardon can

be granted at the post cognizance stage to a person, who

has not been arraigned as an accused in the final report.

2. The appellant herein is presently the sixth accused

in S.C No.04/2021/NIA on the files of the Special Court

for Trial of NIA Cases, Ernakulam. In the instant appeal,

the appellant impugns the order dated 17.1.2022 in Crl.M.P

No.252/21, as per which, application filed by the N.I.A at

the investigation stage seeking grant of pardon to accused

nos.3, 8 and 14, has been taken up for consideration in Crl A.213/2022

the post cognizance stage, overruling the objections

raised by the appellant/A6 and directed production of the

said accused persons before the court in the next posting

date.

3. The prosecution allegations and incidents, which

culminated in the impugned order are narrated herein

below:-

A Sreelankan fishing boat by name 'Ravihansi' was

intercepted by the Indian Coast Guard in the Arabian Sea,

which contained huge quantities of narcotic drugs, along

with 5 AK-47 riffles and 1000 nos of 9 mm ammunition. The

boat was seized by the Narcotic Control Bureau on

25.3.2021. A case, numbered as 2/2021, in respect of the

narcotic drug (Heroin) seized, was registered against the

six Sreelankan nationals, who travelled in the said boat

on 26.3.2021. In respect of the other items found in

possession of the accused persons, Crime No.498/2021 was

registered before the Vizhinjam Police Station on 5.4.2021

under Section 27 of the Arms Act, read with Section 34 of

the Penal Code against the said six accused persons. Crl A.213/2022

Pursuant to a notification issued, the N.I.A took over the

investigation and the case was re-registered as

R.C.No.1/2021/NIA/KOC under Sections 7, read with 25(1AA)

of the Arms Act. After effecting formal arrest of the six

accused persons from the Central Jail, Poojappura, they

were produced before the Special Court, Kochi. In the

custodial interrogation of the accused persons, the role

of accused nos.7 (appellant herein) and 8 were revealed

and they were arrested on 2.8.2021. According to the

prosecution, accused nos.7 & 8 are members of the

proscribed organisation, Liberation Tigers of Tamil Eelam

(for short LTTE). Subsequently, offences under Sections

38, 39 and 40 of the Unlawful Activities (Prevention) Act

were also incorporated.

4. On 27.9.2021, the National Investigation Agency filed

Crl.M.P No.177/2021 before the Special Court seeking to

record confession of accused nos.3, 8 and 14. The Special

Court directed the N.I.A to file necessary application

before the Chief Judicial Magistrate. As directed by the

Chief Judicial Magistrate, statements of accused nos.8, 3 Crl A.213/2022

and 14 under S.164 Cr.P.C were recorded by the Judicial

First Class Magistrate's Court No-III, Ernakulam on

20.10.2021, 24.11.2021 and 25.11.2021, respectively.

5. On 4.12.2021, the N.I.A filed the subject Criminal

M.P (Crl.M.P No.252/2021) seeking tender of pardon to

accused nos.3, 8 and 14. On 15.12.2021, the N.I.A filed

final report, wherein the above referred three persons

have neither been arraigned as accused persons, nor as

witnesses. On account of the exclusion of the third

accused (one among the three proposed approvers), the

appellant, who was originally accused no.7, became accused

no.6 in the array. On 30.12.2021, the Special Court took

cognizance of the case.

6. Thereafter, the Special Court proceeded to consider

Crl.M.P No.252/2021, whereupon the present appellant/A6

preferred Annexure-4 objection. However, the impugned

order dated 17.1.2022 was passed overruling the

appellant's objection, challenging which, the instant

appeal is filed.

Crl A.213/2022

7. Heard Smt. Sangeetha Lakshmana, learned counsel for

the appellant/A6 and Sri.S.Manu, learned Assistant

Solicitor General of India for the respondent/N.I.A.

8. After taking us through Sections 306 and 307 of the

Code, learned counsel for the appellant contended that an

application for tender of pardon filed at the

investigation stage/pre-cognizance stage ought to have

been proceeded under Section 306 of the Code, by

forwarding the request for compliance to the concerned

Chief Judicial Magistrate, who alone has the power to

tender pardon under Section 306. The Special Court

seriously erred in considering such an application under

Section 307, Cr.P.C, after filing the final report and

after the Special Court taking cognizance of the case.

According to the learned counsel, the Special Court cannot

mix up the powers under Sections 306 and 307 of the Code.

That apart, in order to invoke the powers under Section

307 by the Special Court at the post cognizance stage,

accused nos.3, 8 and 14 ought to have been in the array of Crl A.213/2022

accused in the final report filed by the N.I.A. The N.I.A

having failed to show the said accused persons in the

array, the Special Court lacks powers under Section 307

Cr.P.C to tender pardon to them. Learned counsel pointedly

invited our attention to the fact that the said accused

persons have not been arrayed even as witnesses in the

final report.

9. Secondly, learned counsel pointed out that the

Special Court under the N.I.A Act, going by Section 16(3)

of the Act, is a Court of Session for all purposes and the

offences are liable to be tried as if the Special Court is

a Court of Session and in accordance with the procedure

prescribed in the Code, wherefore, an application

preferred at the investigation stage, obviously under

Section 306 of the Code, cannot be taken up by the Special

Judge at the post cognizance stage to pass orders under

Section 307 of the Code. Inasmuch as the Special Court has

not taken cognizance as against accused nos.3, 8 and 14

and has not issued summons to them, an application under

Section 307 also cannot be entertained by the Special Crl A.213/2022

Court, is the submission of the learned counsel for

appellant.

10. Since the revisional powers have not been conferred

on the Sessions Court, or for that matter, a Special

Court, the impugned order cannot be revised or modified

and the only course open to the Special Court is to make a

reference under Section 395 Cr.P.C to the High Court and

to get the cognizance taken cancelled, by setting aside

the order dated 31.12.2021 to issue summons to the accused

persons.

11. Refuting the above contentions, learned ASGI

submitted that the Special Court can invoke the powers

under Sections 306 and 307, both, in the matter of grant

of pardon, it being a court of original criminal

jurisdiction. The legal position in this regard is settled

by a catena of decisions of the Hon'ble Supreme Court. The

learned ASGI placed specific reliance upon the judgments

in P.C.Mishra v. State (CBI) and Ors. [(2014) 14 SCC 629],

Bangaru Laxman v. State (through CBI) and Ors. [(2012) 1 Crl A.213/2022

SCC 500] and Harshad S.Mehta and Ors v. State of

Maharashtra [(2001) 8 SCC 257] in support of the above

argument. Inasmuch as the powers under Sections 306 and

307 are available to the Special Court, there is no

procedural irregularity in the impugned order, contends

the learned ASGI. As regards non-arraignment of accused

nos.3, 8 and 14, learned ASGI propounded a two fold

argument, one based on facts and the other, on

interpretation of Sections 306 and 307 of the Code. On

facts, learned ASGI submitted that it has been

specifically referred to, in the final report that the

application seeking pardon in respect of the said three

accused persons is pending and that N.I.A reserves its

right to file supplementary charge sheet, if the

application is rejected for some reason or other. On law,

learned ASGI invited our attention to the language

employed in Section 306, as also, Section 307 to point

out that the word 'accused' is not employed in these

two Sections. Instead, the language employed is 'any

person supposed to have been directly or indirectly

concerned in or privy to an offence'. Thus, according to Crl A.213/2022

the learned ASGI, it is not the requirement of law that a

person in whose favour pardon is sought for under Section

306 should have been arraigned as an accused person. The

requirements are met, if the person who is sought to be

pardoned is supposed to have been directly or indirectly

concerned in or privy to the offence concerned. The

learned ASGI contended that a co-accused has no locus

standi to challenge a proceeding for grant of pardon to

another. The instant appeal is not maintainable is the

final argument of the learned ASGI, in as much the order

impugned is an interlocutory order, pure and simple.

12. Having heard the learned counsel appearing on both

sides, we will first examine the binding precedents on the

powers of a Special Court in the matter of grant of

pardon.

13. In Commander Pascal Fernandes, Lt. v. State of

Maharashtra and Others [AIR 1968 SC 594], a three Judge

Bench of the Hon'ble Supreme Court, after discussing the

powers under Sections 327 and 338 of the old Code, Crl A.213/2022

corresponding to Sections 306 and 307 of the new Code,

held in paragraph no.11 that the powers of the Special

Judge are not circumscribed by any condition, except that

it must be with a view to obtaining the evidence of any

person supposed to have been directly or indirectly

concerned in, or privy to an offence. The Supreme Court

also held that the Special Judge can exercise such power

at any time after the case is received for trial, and

before its conclusion.

14. In A.Deivendran v. State of T.N. [(1997) 11 SCC 720],

a two Judge Bench of the Hon'ble Supreme Court held in

paragraph no.6 that after committal of the case, it is the

Court of Session which has the power to grant pardon under

Section 307 of the Code. The legal position was analysed

after juxtaposing Section 307 of the present Code with the

corresponding Section 338 of the old Code, to find that

the option available under Section 338 of the old Code to

order the committing Magistrate or the District Magistrate

to tender pardon is conspicuously absent in Section 307 of

the new code. The Hon'ble Supreme Court also held that a Crl A.213/2022

pardon tendered by the Chief Judicial Magistrate after

committal proceedings is not a curable irregularity within

the ambit of Section 460(g) of the Code.

15. In this context, it is apposite to extract the

following commentary from Sohoni's Code of Criminal

Procedure (20th Edn.) on Sections 306 and 307 of the Code,

which are essentially based on the dictum laid down in

A.Deivendran (supra).

"14. Tender of Pardon After Commitment to Sessions There is a difference in the phraseology employed in S.307 of the 1973 Code, and that employed in the correspondent S.338 in the 1898 Code. Under the scheme of the 1898 Code, the court of session, after the commitment of the case, had the power not only to grant pardon itself, but could also to direct the committing magistrate or the district magistrate to tender pardon. However, under S.307 of the Code of 1973, only the court to which the commitment is made is competent to grant pardon. The retention of the marginal heading of S.338 of the 1898 Code, 'Power to direct tender of Crl A.213/2022

pardon', without any change in S.307 of the Code of Criminal Procedure 1973, may appear misleading. However, the said marginal heading cannot be used to imply anymore a power of the court of session to direct any subordinate magistrate to grant pardon, after the committal of the case.

The tender of pardon by the chief judicial magistrate, after the committal of the case is illegal and beyond his powers, and the said illegality can neither be cured under S.460(g) Cr P.C., nor can S.465 Cr P.C. be applied to such a patent error of jurisdiction. A tender of pardon by a magistrate in good faith but without any authority may be curable, but a magistrate after committing the case to the court of session lacks the jurisdiction to tender pardon. Under S.525(8) of the 1898 Code, it was specifically stated that if any magistrate not empowered by law to tender pardon under ss.337 or 338 of the 1898 Code, granted pardon, the same would not vitiate the proceedings. In S.460 of the Code corresponding to S.525 of the 1898 Code, the legislature omitted S.307 from cl.(g), and thus such irregularity committed by a magistrate is no longer curable."

Crl A.213/2022

16. In Harshad S.Mehta and Ors v. State of Maharashtra

[(2001) 8 SCC 257], the Hon'ble Supreme Court examined the

powers of a Special Court established under the Special

Court (Trial of Offences Relating to Transactions in

Securities) Act, 1992 in tendering pardon. Relying upon a

Constitution Bench decision in A.R.Antulay v. Ramdas

Sriniwas Nayak [(1984) 2 SCC 500], it was held that a

Special Court is a court of original criminal jurisdiction

and it has to function as such, not being bound by the

terminological status description of Magistrate's Court or

a Court of Session. Under the Code, a Special Court will

enjoy all powers which a court of original criminal

jurisdiction enjoys, save and except the ones specifically

denied. The Supreme Court went on to hold that a Special

Court has all the powers of a Court of Session and/or

Magistrate, as the case may be, and that the width of the

power of the Special Court will be same, whether trying

such cases as are instituted before it or transferred to

it. Being a court of original criminal jurisdiction, the

Special Court has all the powers of such a Court under the

Code, including those of Sections 306 to 308, the same not Crl A.213/2022

having been excluded specifically or otherwise.

17. In Bangaru Laxman v. State (through CBI) and Ors.

[(2012) 1 SCC 500], the contention raised was that pardon

could not be granted by the Special Court prior to the

filing of charge sheet, that the power to grant pardon is

not an inherent power and the same has to be specifically

conferred and that the powers under Section 306 of the

Code having not been conferred, the Special Judge under

the Prevention of Corruption Act, 1988 ('P.C Act') could

not have exercised the same. The contention was also that

Section 5(2) of the P.C Act specifically deemed the pardon

granted by the Special Court to be one under Section 307

and hence there is no question of the Special Court under

the P.C Act invoking Section 306 of the Code. To repel the

above contentions, at the outset, it was held that the

power of the Special Judge to grant pardon is an

unfettered power, subject to stipulation made in that

section and that such power can be exercised at any stage.

The deeming provision under Section 5(2) was to enable

application of sub-sections (1) to (5) of Section 308 to a Crl A.213/2022

pardon granted under Section 5(2) and not to exclude the

power under Section 306. The Hon'ble Supreme Court also

took stock of the dictum laid down in Harshad S.Mehta

(supra) that even in the absence of a provision like

Section 5(2) in the P.C Act, still a Special Court

established for the trial of offences relating to

transactions in securities, is a court of original

criminal jurisdiction having all the powers under the

Code, including those under Sections 306 and 308. Further,

reliance was placed upon the judgment in State of

Tamilnadu v. V.Krishnaswami Naidu and Another [(1979) 4

SCC 5] to find that a Special Judge has the power of

remand, since a Magistrate would include a Special Judge,

going by Section 3(32) of the General Clauses Act, 1897.

The Supreme Court concluded that a Special Judge under the

P.C Act has the dual power of a Session Judge as well as

that of a Magistrate and he conducts proceedings under the

Code, both prior to filing of the charge sheet as well as

after filing the charge sheet. On the strength of such

finding, the contention that a Special Court cannot grant

pardon at the investigation stage was repelled. Especially Crl A.213/2022

when the Special Court is not hidebound by terminological

status descriptions of Magistrates or Courts of Session

and are empowered to function as a court of original

criminal jurisdiction.

18. In P.C.Mishra v. State (CBI) and Ors. [(2014) 14 SCC

629], another two Judge Bench of the Hon'ble Supreme Court

held that the powers under Section 306, Cr.P.C, can be

concurrently exercised by a Magistrate, as also, a Special

Judge during the pre-committal stage; however, after

committal, the power to grant pardon vests with the

Special Court only, to which the case was committed. In

this case also, the offences alleged were under the P.C

Act. The dictum laid down in A.Deivendran (supra) that

grant of pardon after committal of the case by the

Magistrate is not a curable irregularity has been

reiterated in P.C.Mishra (supra). As regards exercise of

jurisdiction under Section 306 of the Code by the

Magistrate, even after appointment of the Special Judge

under the P.C Act, the Hon'ble Supreme Court held that the

same is only a curable irregularity, incapable of Crl A.213/2022

vitiating the proceedings, more so when the Special Judge

himself had referred the application for grant of pardon

to the Chief Judicial Magistrate, since the case was under

investigation.

19. In State through CBI, Chennai v. V.Arul Kumar [(2016)

11 SCC 733], the challenge was against an order of the

Metropolitan Magistrate granting pardon to five accused

persons in respect of offences under the P.C Act, on the

ground that the Special Judge alone has the power to

tender pardon. The challenge was repelled by the Hon'ble

Supreme Court holding that Section 5(1) of the P.C Act

enabling the Special Judge to take cognizance, without the

accused being committed for trial, only waives the mandate

under Section 193, Cr.P.C, and the same cannot be

understood to mean that the Special Court alone can take

cognizance. The normal procedure prescribed under Section

190, Cr.P.C, empowering the Magistrate to take cognizance

is not given a go bye. It was held that both the

alternatives are available and if the charge-sheet is

filed before the Magistrate, then there should be a Crl A.213/2022

committal proceeding and prior to that, the Magistrate can

exercise the power under Section 306. In contrast, if the

Special Judge takes cognizance directly, then Section 306

gets bypassed and the Special Judge gets the power under

Section 307. The enabling provision under the P.C Act,

Section 5(1), bypassing the procedure under Section 190,

is akin to Section 16(3) of the N.I.A Act. In the present

case, there was no committal proceeding and hence the

Special Court could have exercised the power under Section

307 at any stage after cognizance is taken.

20. A Full Bench of this Court in Mastiguda Aboobacker

and Another v. National Investigation Agency (N.I.A) &

Others [2020 (6) KLT 522] held that the N.I.A Act does not

prescribe a special procedure for investigating, inquiring

into or trying the offences under the Act. The N.I.A Act

is intrinsically interlinked with the provisions of the

Code, in the matter of investigation and trial. The Full

Bench took stock of Sections 14 and 16 of the N.I.A Act,

of which the latter stipulates that a Special Court may

take cognizance of any offence without the accused being Crl A.213/2022

committed to it for trial. After referring to the various

provisions, the Full Bench concluded that except for some

minor deviations, all other procedural aspects envisaged

by the Code for trial of a Session Case are made

applicable in the trial before the Special Court

constituted under the N.I.A Act.

21. Having scanned the binding precedents, we will now

examine and analyse the statutory provisions, which govern

the topic. It is true that an enabling provision akin to

that of Section 5(2) of the P.C Act is not engrafted in

the N.I.A Act to grant pardon. However, Section 16(3)

specifically provides that a Special Court shall have all

the powers of a Court of Session for the purpose of trial

of any offence and shall try the offence, as if it were a

Court of Session, so far as may be in accordance with the

procedure prescribed in the Code for trial before a Court

of Session. Section 5(2), as has been held in Bangaru

Laxman (supra), only enables application of Section 308,

Cr.P.C, in cases of default to testify after getting

pardon under that provision; which is deemed to be a Crl A.213/2022

pardon granted under Section 307. For offences, which are

punishable with imprisonment for a term not exceeding

three years or with fine, Section 16(2) provides that such

offences can be tried summarily, in accordance with the

procedure prescribed by the Code.

22. Having bestowed our conscious attention to Section

16(3) of the Act, we are of the definite opinion that the

said Section does not act as a fetter in resorting to any

of the provisions of the Code of Criminal Procedure, but

in fact, is an enabling one. All powers of a Court of

Session is seen vested with a Special Court, with certain

modifications/exceptions, like the one provided in Section

16(1) of the N.I.A Act to take cognizance without the

accused being committed for trial. The obvious purpose is

to expedite the business transacted by the Special Court,

so as to ensure a speedy trial in respect of offences

falling under the N.I.A Act. Therefore, the absence of an

enabling provision to grant pardon, as the one available

in the P.C Act, would not fetter a Special Court under the

N.I.A Act, in any manner, inasmuch as it is stipulated Crl A.213/2022

specifically that the Code will govern the procedure for

trial before the Special Court. We are also justified in

taking this view garnering support from the authoritative

pronouncement in A.R.Antulay (supra), that is to say,

unless a Special Court is specifically denuded of a power,

the power should be deemed to be existing with such Court.

23. Now, coming to Sections 306 and 307, it is amply

clear from a perusal of the provisions that so far as

offences, which are triable exclusively by a Court of

Session or Special Court, the power under Section 306 is

to be exercised in the pre-committal stage, whereas the

power under Section 307 at the post committal stage.

A.Devaindran (supra) held in unmistakable terms that the

Chief Judicial Magistrate/Metropolitan Magistrate cannot

order grant of pardon, once a case has been committed to

the Court of Session. It was also held that such an

exercise is not a curable irregularity under Section 460,

Cr.P.C. However, in the case of a Special Court, there is

coalescence of the powers of both a Magistrate and a

Special Judge, as held in Bangaru Laxman (supra). Crl A.213/2022

Therefore, uninfluenced by the stage of investigation,

inquiry or trial, a Special Court can entertain an

application for grant of pardon, since it has the powers

under Sections 306 and 307; both. Therefore, it cannot be

argued that an application preferred at the investigation

stage cannot be considered/entertained by the Special

Judge. It is the contention of the learned counsel for the

appellant that an application preferred at such stage

ought to have been forwarded to the C.J.M for the purpose

of grant of pardon; and having failed to do so, the

Special Court cannot consider such an application under

Section 307 of the Code, since that Section contemplates

power only at the post committal stage. We are unable to

endorse the legal position canvassed by the learned

counsel for the appellant. Being a court of original

criminal jurisdiction and having been specifically

bestowed with the power to take congnizance, without a

formal commitment of the case, a Special Court can

exercise the powers to grant pardon, either under Section

306 or under Section 307, at any stage of the proceedings;

of course subject to the propriety, good faith and bona Crl A.213/2022

fides of exercise of such power, which also has to be made

judiciously.

24. As regards the separation of authority regarding the

power to grant pardon as envisaged under Sections 306 and

307, we find a specific logic, which we may indicate

herein. It is settled that the exercise of the power to

grant pardon is a judicial act, to be performed

judiciously with due application of mind. [See in this

regard 1). Ashok Kumar Aggarwal (supra) - paragraph 20 ;

and 2). Santhosh Kumar Satishbhushan Bariyar v State of

Maharashtra {(2009) 6 SCC 498}]. Several factors, as

referred to in Sections 306 and 307, are to be considered

and assessed by the Magistrate or the Sessions Judge, as

the case may be. It follows that all the relevant

materials/records should be available with the Court

tendering pardon for a proper exercise of such power. At

the pre-committal stage, such records/materials are with

the Magistrate, whereas at the post committal stage, with

the Sessions Court. This explains the bifurcation of power

to grant pardon as between the two courts as envisaged Crl A.213/2022

under Sections 306 and 307, separately. This precisely

would be the underlying logic in A.Deivendran (supra) that

the Magistrate's Court does not have power to grant

pardon, once the case is committed to the Court of

Sessions. In the touch stone of the above elucidated

concept, we are of the opinion that it is always advisable

for a Special Court to consider an application for grant

of pardon by itself, albeit power being available to refer

the same to the C.J.M.; if cognizance is taken directly.

25. In the light of the above discussion, we repel the

first limb of the appellant's argument that a Special

Court lacks power under Section 306 of the Code to

entertain an application for tender of pardon - preferred

during the investigation stage - after filing the charge

sheet and taking cognizance.

26. WHETHER PARDON CAN BE TENDERED TO AN ACCUSED PERSON

ALONE?

The second bone of contention of the appellant is that the

proceedings initiated to grant pardon to accused nos.3, 8 Crl A.213/2022

and 14, who have not been arraigned as accused in the

final report, is grossly illegal. In other words, the

person to whom pardon is being granted under Section 306,

or for that matter, Section 307, should necessarily be an

accused person. Learned counsel would also attach

infirmity to the final report, inasmuch as the said three

persons were not shown as witnesses either.

27. For a correct understanding of this issue, it is

necessary to have a closer look at Sections 306(1) and

307, which are extracted herein below:-

"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 Crl A.213/2022

circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

307. Power to direct tender of pardon.-- 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 directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person."

28. We notice, at the outset, that the language employed

in Section 306, as also, Section 307 is not "an accused

person", but "any person" supposed to have been directly

or indirectly concerned in or privy to an offence, to

which Section 306 applies. Thus, pardon can be tendered to

"any person", who would satisfy the above requirements;

he neither has to be an accused person nor requires to be

arraigned as an accused in the final report. A conscious

non-employment of the term "accused person" in Sections

306 and 307 abundantly answers the appellant's contention Crl A.213/2022

afore referred. We take note of the expression "supposed

to have been". Referring to Continental Casualty Co v.

Paul [209 Ala 166], Ballentine's Law Dictionary (3rd

Edition) defines the term "supposition" thus:

"Something regarded as true, without proof. In the law of evidence, an inference is a deduction from the facts proved and differs widely from "a supposition", which requires no such premise for its justification."

29. It could thus be seen that the person in whose favour

pardon is sought to be tendered should be supposed or

considered to have been concerned in or privy to the

offence. The expression 'supposed to have been' is an

elastic one, providing ample room for the person concerned

to have a lessor role.

30. Again, the person to whom pardon is to be tendered,

need only be "directly or indirectly concerned in or privy

to" the offence. The expression "directly or indirectly"

indicates the nature of such person's involvement in the

crime, of which, the latter tends to be less

incriminating. Relying upon R.Dalmia v. Commissioner of Crl A.213/2022

Income Tax [(1977) 2 SCC 467], Wharton's Law Lexicon (15th

Edn.) defines the term "concern" as follows:

"The word 'concern' is not a term of art, having a precise, fixed meaning. It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum. It may mean "to have a relation to, or bearing on, be of inherent or importance" or "to have an anxiety, worry."

"Concerned" as an adjective may mean "interested", "involved"."

The term "privy" is defined in Wharton's Law Lexicon (15 th

Edn.) thus:

"Privy - Having participation in some act, so as to be bound thereby. (Woodhouse v. JenKins [(1832) 9 Bing 441].

It could thus be seen that the expression "privy to"

indicates a larger, active and direct participation in the

crime. The same language, as employed in Section 306, is

employed in Section 307, insofar as the recipient of

pardon is concerned.

Crl A.213/2022

31. We, therefore, conclude on the basis of the above

discussion and having regard to the terminology and

expressions employed in Sections 306 and 307 that the

person to whom pardon is to be tendered need not

necessarily be an accused; rather it is not a sine qua

non. The fact that in many an occasion, pardon is being

granted to an accused person, is no indication for a

conclusion that such person should always be arraigned as

an accused person. In adopting the above interpretation,

we are fortified by the judgment of the Hon'ble Supreme

Court in Commander Pascal Fernandes (supra), the relevant

findings of which are extracted below :

"12.There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned." (underlined by us for emphasis)

A Division Bench of the Orissa High Court in Rabi Das &

Ors v. State [1976 Crl.LJ 2004] and the Bombay High Court Crl A.213/2022

in Makbool Abdulrazzak v. State of Maharashtra [LAWS

(BOM)-2004-8-141] took a similar view, with which we

respectfully agree.

32. That apart, N.I.A has satisfactory explanation on

facts as well to this issue raised by the appellant.

Firstly, accused nos.3, 8 and 14, in whose favour tender

of pardon is sought for, have been arraigned as accused in

the F.I.R. Secondly, in the final report filed, it is

indicated that the application for tender of pardon to the

accused aforereferred is pending and that the N.I.A

reserves its right to file a supplementary charge sheet,

in case the pardon sought for is declined. We are of the

view that the above factual premise affords adequate

explanation to the non-inclusion of the said three accused

persons in the array of accused persons in the final

report. Nonetheless, we may also observe that, in the

fitness of things, they should have been shown in the

final report in the array of accused, with a rider -

proposed approver - and it amounts to a minor

irregularity in excluding the said accused person from the Crl A.213/2022

party array, on the expectation that the pardon sought for

will be allowed. However, this minor irregularity is a

curable one by filing a supplementary charge sheet, or an

additional list of witnesses, depending upon the outcome

of the tender of pardon sought for. The following excerpts

from a Privy Council decision in Faquir Singh v. Emperor

[AIR 1938 PC 266] is apt :

"If the manner in which the tender of pardon is made, follows in substance the method prescribed in Section 337, then, the Section must apply. Minor and immaterial irregularities or variations cannot be taken to affect the operation of the Section."

Point concluded accordingly.

33. Before leaving this judgment, we are also persuaded

to consider the issue whether the appellant in his

capacity as a co-accused can assail, an order/proceeding

of the Special Court purporting to consider an application

for tender of pardon preferred by the investigating

officer. The contention of the N.I.A in this regard that

the appellant herein has no locus to challenge an order to Crl A.213/2022

consider the tender of pardon sought for, was accepted by

the learned Special Judge in the order impugned.

34. We notice the judgment of the Honourable Supreme Court

in CBI v. Ashok Kumar Aggarwal and Another [2014(14) SCC

295] wherein, it was held that the Magistrate tendering

pardon is bound to consider the consequence of grant of

pardon, taking into consideration the policy of the State

and to certain extent, compare the culpability of the

person seeking pardon, qua the other co-accused. Inasmuch

as the grant of pardon is likely to visit the co-accused

with adverse consequences, one will be persuaded to think

in favour of recognising the right of accused to challenge

the same by virtue of the above observation of the

Honourable Supreme Court. However, in the same judgment,

the Supreme Court in paragraph no.26, clarifies that a co-

accused has no legal right to raise any grievance in the

matter of tender of pardon, particularly in view of the

law laid down in Ranadhir Basu v. State of West Bengal

[(2000) 3 SCC 161]. Nevertheless, the Supreme Court held

that revisional powers under Sections 397, r/w 401, Crl A.213/2022

Cr.P.C, can be exercised by the Court suo moto.

35. In Ranadhir Basu v. State of West Bengal [(2000) 3

SCC 161], the Hon'ble Supreme Court distinguished the

judgment in Suresh Chandra Bahri v. State of Bihar [(1995)

Supp. 1 SCC 80] to hold that examination of the person to

whom pardon was tendered in the Court of Magistrate taking

cognizance as contemplated in Section 306(4) need not be

in the presence of the accused. The Supreme Court held

that examination of a witness does not necessarily include

cross-examination of the witness and the type of

examination contemplated would depend upon the object and

purpose of that provision. Section 202, Cr. P.C, was

relied upon to point out that examination of witness

stipulated therein is at a stage where the accused has no

locus standi, having regard to the object and purpose of

that Section.

36. Taking stock of Ashok Kumar Aggarwal and Ranadhir

Basu (supra), we hold that a co-accused has no locus

standi to challenge an order for considering the tender of Crl A.213/2022

pardon sought for by the investigating agency. Of course,

a co-accused gets a substantive right to assail the truth

of the facts confessed by the approver, when he is

examined during the course of trial. Point concluded as

above.

37. Lastly, we also notice that the instant appeal is

liable to be dismissed on the question of maintainability

as well. Sections 21(1) and 21(3) of the N.I.A Act as

relevant in this context are extracted herein below:

"21(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

(2).........

(3) Except as aforesaid, no appeal or revision shall lie to any Court from judgment, sentence or order including an interlocutory order of a Special Court."

The order impugned before us only rejected the objections

of the appellant as regards the legality in invoking the Crl A.213/2022

powers under Sections 306 and 307, Cr.P.C, having regard

to the stage at which it was sought to be done. The order

impugned has not considered as to whether the pardon

sought for should be tendered or not. After rejecting the

objections, the Special Court merely directed the accused

persons to be produced in the next posting date, as per

the impugned order. This is, for sure, an interlocutory

order and therefore, the appeal is not maintainable in

view of Section 21(1) of the Act. As regards the scope of

a revision under Sections 397, read with 401 Cr.P.C, we

are bound to notice the mandate under Section 21(3) of the

N.I.A Act, specifically barring a revision from any

judgment, sentence or order of the Sub Court, including an

interlocutory order. We, therefore find that the instant

appeal is not maintainable. However, since we spent

considerable time on the issue raised by the appellant and

that clarity as regards the procedure is warranted for

future guidance, we thought it appropriate to address the

issues on merits as well.

38. We, therefore, reject this appeal. However, we make Crl A.213/2022

it clear that we have not expressed any opinion as regards

the merits of the application seeking tender of pardon in

favour of accused nos.3, 8 and 14. The learned Special

Judge will consider the said application on merits in

accordance with law, taking stock of the statutory

provisions and binding precedents, untrammeled by any of

the observations made by us in this judgment.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

C.JAYACHANDRAN JUDGE jg/sbna Crl A.213/2022

APPENDIX OF CRL.A 213/2022

APPELLANT'S ANNEXURES Annexure1 TRUE COPY OF THE CHARGE SHEET NO.2/2021 DT.15.12.2021 FILED BY THE RESPONDENT. Annexure2 TRUE COPY OF THE PROCEEDINGS DT.31.12.2021 OF THE HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, KERALA AT ERNAKULAM IN RC NO.01/2021/NIA/KOC Annexure3 TRUE COPY OF THE CRL.M.P 252/2021 DT.04.12.2021 FILED BY THE RESPONDENT BEFORE THE HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, KERALA.

Annexure4 TRUE COPY OF THE OBJECTIONS DT. 14.01.2021 FILED BY THE APPELLANT HEREIN, IN CRL.M.P 252/2021 IN RC NO.01/2021/NIA/KOC.

Annexure5 TYPED COPY OF THE PROCEEDINGS IN RC NO.01/2021/NIA/KOC AND SESSIONS CASE 4/2021 FROM 15.06.2021 TILL DATE AS NOTED IN THE A-DIARY OF THE HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, KERALA AT ERNAKULAM Annexure6 TRUE COPY OF THE ORDER DT.13.08.2021 ISSUED BY HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM IN CRL.M.P NO.150/2021 IN RC-01/2021/NIA/KOC Annexure7 TRUE COPY OF THE ORDER DT.13.08.2021 ISSUED BY HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM IN CRL.M.P NO.149/2021 IN RC-01/2021/NIA/KOC Annexure8 TRUE COPY OF THE COMPLAINT LETTERS DT.28.08.2021 SENT BY THE APPELLANT AND SOUNDAR RAJAN @ SOUNDAR (A8) FROM SUB JAIL ALUVA AND THE REPORT DT.28.08.2021 Annexure9 TRUE COPY OF THE DT. 27.09.2021, THE HON'BLE SPECIAL COURT IN CRL.M.P.177/2021 DT.23.09.2021 IN RC-01/2021/NIA/KOC. Crl A.213/2022

Annexure10 TRUE COPY OF THE STATEMENT DT. 20.10.2021 U/S.164 CR.P.C, OF A8 SOUNDARAJAN RECORDED BY HON'BLE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-III, ERNAKULAM.

Annexure11 TRUE COPY OF THE LETTER DT.17.11.2021 ISSUED BY THE HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, TO THE SUPDT SUB JAIL ALUVA Annexure12 TRUE COPY OF THE STATEMENT DT 24.11.2021 OF MENDIS GUNASHEKARA (A3) RECORDED BY HON'BLE JUDICIAL MAGISTRATE'S COURT-III ERNAKULAM.

Annexure13 TRUE COPY OF THE STATEMENT DT 24.11.2021 OF AHAMED FASLY(A14) RECORDED BY HON'BLE JUDICIAL MAGISTRATE'S COURT-III ERNAKULAM Annexure14 TRUE COPY OF THE STATEMENT DT. 08.12.2021 OF SURESH RAJ IN CRL.M.P 242/2021 IN RC-

01/2021/NIA/KOC RECORDED BY THE HON'BLE SPECIAL COURT.

Annexure15 TRUE COPY OF THE ADDITIONAL STATEMENT DT.10.01.2021 IN CRL.M.P.242/2021 IN RC- 01/2021/NIA/KOC.

Annexure16 TRUE COPY OF THE ORDER DT. 17.01.2022 PASSED BY THE HON'BLE SPECIAL COURT IN CRL.M.P.242/2021 IN RC-01/2021/NIA/KOC. Annexure17 TRUE COPY OF THE CRL.M.P 268/2021 DT.24.12.2021 IN RC.01/2021/NIA/KOCHI FILED BY THE APPELLANT HEREIN BEFORE THE HON'BLE SPECIAL COURT.

Annexure18 TRUE COPY OF THE ORDER DT.17.01.2021 PASSED BY THE HON'BLE SPECIAL COURT IN CRL.M.P 268/2021 IN RC.01/2021/NIA/KOCHI