Orissa High Court
Nirakar Bhoi And Two Others vs State Of Odisha And Another on 28 July, 2023
ORISSA HIGH COURT, CUTTACK.
CRLREV No. 290 of 2012
An application under Section 397 read with Section 401, Cr.P.C.
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Nirakar Bhoi and two Others ... Petitioners
Mr. H.S. Mishra, Sr. Advocate
-versus-
State of Odisha and another ... Opposite Parties
Mr. M.K. Mohanty, A.S.C.
Mr. A.K. Acharya, Adv. for O.P.2
CORAM :
JUSTICE CHITTARANJAN DASH
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DATE OF JUDGMENT : 28.07.2023
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Chittaranjan Dash, J.
1. Challenge in this Revision has been to the legality, propriety and
correctness of the order dated 30.04.2012 passed by the learned
Additional Sessions Judge-cum-Special Judge (Vigilance), Bolangir in
S.T. Case No.89/10 of 2010-12, wherein the learned court allowed the
prayer of the accused Balaram Pradhan moved under Section 307,
Cr.P.C. and pardoned him to be examined as a witness for the
prosecution in line with the stipulation under Section 308, Cr.P.C.
Pursuant to such pardon, the accused filed a memo accepting the
conditions.
2. The background facts of the case are that, one Sudam Sahu, son of
Bhojaraj Sahu of village Budhipadar under Loisingha P.S. in the district
of Bolangir lodged a written report informing that on 29.05.2009 at about
10.30 A.M. the owner of the Rugudikhal Sahoo Dhaba stopped him and
told that his (informant's) brother Anand Sahu @ Jhara has been severely
assaulted to death. The informant thereafter arrived at the Loisingha
Hospital and again at Bolangir Government Hospital and found the dead
body of his elder brother Anand Sahu @ Jhara kept in the premises of the
Government Hospital, Bolangir. He found injuries appearing on his head,
face, legs and there was bleeding. He also found the right hand of his
deceased brother to have broken. According to the informant, seeing the
dead body, it appeared that somebody attacked him severely by means of
sharp cutting weapon and committed his murder. It is also alleged in the
F.I.R. that in the District Headquarter Hospital at Bolangir he came to
know that his brother Anand Sahu was attacked near Loisingha station
and was left abandoned after a brutal assault in a serious condition.
3. On the basis of the report lodged, the law was set in motion and
investigation commenced. In course of the investigation, police visited
the spot, seized the incriminating articles, held the inquest over the dead
body, sent the dead body for Post-Mortem Examination, examined the
witnesses, arrested the accused Balaram Pradhan, Prashant Kumar Rath
@ Suru Babu @ Hapi, recorded the statement of the accused Balaram
CRLREV No.290 of 2012
Pradhan under Section 164, Cr.P.C. and other witnesses under Section
161, Cr.P.C. and upon completion of the investigation, having found
prima facie evidence against the accused persons including accused
Balaram Pradhan, submitted charge-sheet under Sections
147/148/302/120/149, I.P.C. The case having been committed to the
court of sessions was transferred to the court of the learned Addl.
Sessions Judge-cum-Special Judge (Vigilance), Bolangir, who framed the
charge against the accused persons on 14.03.2012.
4. While the matter stood thus, soon after framing of the charge, before
commencement of recording evidence on 20.04.2012 one of the accused
persons namely Balaram Pradhan filed a petition under Section 307,
Cr.P.C. directly before the learned trial court with the prayer to act upon
it and to tender pardon to him within the sweep of Section 307, Cr.P.C. A
copy of the petition so filed on behalf of the accused Balaram Pradhan
was served on the Associate Public Prosecutor whereas no copy was
served on the co-accused persons despite objections raised from the side
of the co-accused persons that they are entitled to file objection. Learned
court having taken cognizance of the petition filed under Section 307,
Cr.P.C., sought for a statement from the prosecution side before
consideration of the said petition fixing the case to the very next date. On
the next date, i.e. 21.04.2012 the learned Associate PP filed a petition for
time to file objection, which the learned court declined and affording no
further opportunity proceeded without reference to the co-accused
persons or the prosecution.
CRLREV No.290 of 2012
5. In its further proceeding the learned court got the statement of the
accused Balaram Pradhan recorded, wherein the accused stated to have
given a full and true disclosure of the whole circumstances within his
knowledge relating to the offence and to other persons concerned
whether the principal or the abettor in the commission thereof. In its
order learned court observed that the Associate PP did not have any
objection to the statement of the accused so recorded. On 23.04.2012
before the learned court acted upon the prayer of the accused Balaram
Pradhan in his petition filed under Section 307, Cr.P.C., it was pointed
out by the Associate PP that there is slight variation in the statement of
the accused recorded under Section 164, Cr.P.C. and the statement
recorded in consonance with the provision under Section 306(1), Cr.P.C.
However, the learned court vide its order dated 30.04.2012 passed a
speaking order and allowed the petition filed by accused Balaram
Pradhan under Section 307, Cr.P.C., as required under the statute and
pardoned him to be a witness for the prosecution following the
consequence of the provision of Section 308, Cr.P.C. which is impugned
herein.
6. In order to appreciate the argument advanced by the learned counsel
for the Petitioner, it is apt to refer to the provisions under Sections 306
and 307, Cr.P.C.
Section 306, Cr.P.C. provides :-
"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
CRLREV No.290 of 2012
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 or 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 of thereof."
Section 307, Cr.P.C. provides :-
"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."
7. A meticulous examination of both the provisions indicates that Section
306, Cr.P.C. is applicable in a case where the order of commitment has
not been passed, whereas Section 307, Cr.P.C. is applicable after the
commitment of the case is done but before the judgment is pronounced.
As mandated in the provision, after commitment of the case, pardon is to
be granted by the trial court subject to the condition specified in Sub-
Section (1) of Section 306, Cr.P.C., i.e. after making a full and true
disclosure of the whole of the circumstances within his knowledge
related to the offence and to every other person concerned whether he/she
is principal or abettor in the commission thereof.
CRLREV No.290 of 2012
8. It is submitted by the learned counsel for the Petitioner that the court
below erred in law and passed the impugned order illegally with material
irregularity, which is perverse for non-application of judicial mind,
tainted with arbitrariness and contrary to the settled principles of law. He
further argued that the learned trial court committed gross illegality by
not referring the petition filed under Section 307, Cr.P.C. to the
prosecution, instead it entered into the ring as a veritable director of
prosecution in as much as the trial court exercised the power to pardon on
behalf of the prosecution agency whereas, such power is to be exercised
only when the prosecution joins in the request. It is further argued that,
the order impugned is illegal for the reason that the prayer for time to file
objection by the prosecution was rejected by the court when it is
incumbent for the court before granting of pardon to an accused to call
for a statement of the prosecution which the learned court did not adhere
to and as such the learned court has transgressed its jurisdiction.
According to learned counsel, the learned court below even did not allow
the petitioner to get the certified copy of the statement and thereby the
order impugned suffers a gross illegality and prays to set aside the same.
9. The learned counsel for the State Mr. Mohanty submitted that the
order impugned is in consonance with fact and law and requires no
interference. Subscribing the versions of the learned Addl. Standing
Counsel, Mr. A.K. Acharya, learned counsel appearing on behalf of the
Opposite Party No.2, i.e. accused Balaram Pradhan, contended the
impugned order as legal and justified and akin to the relevant provision.
CRLREV No.290 of 2012
He further submitted that the impugned order receives assurance from
various pronouncements and canvassed for no interference thereupon
relying upon the decisions reported in (2013) 13 SCC in the matter of
Yakub Abdul Menon Vs. State of Maharashtra and Suresh Chandra
Bihari Vs. State of Bihar reported in (1995) Supp.(1) SCC 80.
10. As held in the matter of State of Andhra Pradesh Vs. Cheemalapati
Ganeswara Rao and Another, the power under Section 307 Cr.P.C is
exercised with an object to allow pardon to be tendered in a grave
offence allegedly to have committed by several persons so that with the
aid of evidence of the person so pardoned the offence could be brought
home to the rest.
11. The moot question requires answer herein is whether the impugned
order passed by the learned court would sustain in the eye of law in terms
of section 307 Cr.P.C. ? As stated, the provision U/s 307 Cr.P.C.
empowers the trial court to act upon the prayer of the accused for grant of
pardon. The only condition for granting pardon is "with a view to
obtaining the evidence of any person who is supposed to have been
directly or indirectly concerned in, or privy to, an offence". This makes it
clear that the person seeking pardon need not be a culprit himself as held
by several High Courts including this Court in the matter of Giria Vs.
State of Orissa, 91(2001) CLT 639(Ori).
12. The provision also does not make it mandatory to record the
statement of the accused seeking pardon to get his statement recorded
U/s. 164 Cr.P.C nor does the statement so recorded belies the object.
CRLREV No.290 of 2012
There is also no illegality in recoding the statement of the accused before
the grant of pardon inasmuch as the aim of the court granting pardon to
an accused is only to obtain evidence as a witness. The fact that there is
already a recoded confession under Section 164 Cr.P.C cannot be a factor
weighing against the tender of pardon.
13. The submission that ordinarily it is for the prosecution to ask that a
particular accused out of several may be tendered pardon does not
preclude the accused from directly applying to the court. Further, the
very object of the provision does not in any manner make the proceeding
illegal merely for the reason that the court requesting the prosecution to
give statement files no statement. This is because once the accused
volunteers to become a witness within the ambit of the provision leaves
no discretion to the prosecution, save and except a caution to be
maintained by the court exercising the power to pardon. In the instant
case, the order impugned clearly indicates that the Prosecution did not
object to the recording of statement of the accused before grant of
Pardon. The discrepancy pointed out in the statement of the accused in
his statement recorded U/s. 164 Cr.P.C. and the statement recorded
before grant of pardon does not affect the object of the proceeding.
Further, the exculpatory or inculpatory statement of the accused is
matters of appreciation of the court during trial and nothing to do with
the discretion applied by the court in granting the pardon. As rightly held
by the learned court in the impugned order, the grant of pardon to the
seeker is primarily a proceeding between the courts and the Petitioner
and the co-accused have nothing to object. The absence of statement
CRLREV No.290 of 2012
from the prosecution too in the circumstance does not make the order
impugned per se illegal that requires interference. This Court, therefore,
finds no substance in the Revision. Accordingly, the Criminal Revision
fails. The order of the learned Addl. Sessions Judge-cum-Special Judge
(Vigilance), Balangir passed on 21.04.2012 in Sessions Case No.89/10 of
2010-12 is confirmed. Having regard to the age of the case, it is however
directed that the court concerned shall take up the trial in promptitude.
14. The CRLREV is dismissed.
(Chittaranjan Dash)
Judge
S.K. Parida
Signature Not Verified
Digitally Signed
Signed by: SAMIR KUMAR PARIDA
Designation: Addl. Deputy Registrar-cum-Addl. Principal
Reason: Authentication
Location: ORISSA HIGH COURT CRLREV No.290 of 2012
Date: 28-Jul-2023 18:39:11
