Dr. Rekha Gupta vs State Of Uttarakhand And Another
2021 Latest Caselaw 4527 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

     Criminal Misc. Application No. 2017 of 2019

Dr. Rekha Gupta
                                                      ........... Applicant

                                    Vs.

State of Uttarakhand and another                   ........ Respondents


Present : Mr. Rakesh Thapliyal, Senior Advocate assisted by Mr. Lalit Sharma,
          Advocate for the petitioner.
          Mr. Lalit Miglani, AGA for the State.
          Mr. Lokendra Dobhal, Advocate for the respondent no. 2.



                              JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Challenge in the instant petition is made to the

order dated 09.09.2019 passed in Sessions Trial No. 57 of

2016, State v. Yasmeen & others, by the court of 2nd

Additional Sessions Judge, Nainital. By the impugned

order, an application under Section 307 of the Code of

Criminal Procedure, 1973 (for short, "the Code") filed by

respondent no. 2 has been allowed.

2. The case has chequered history. Briefly stated,

it is as hereunder.

3. On 30.05.2014, one Smt. Shama Parveen,

lodged an FIR under Section 376(2), 506 IPC and 5/6 of

the Protection of Children from Sexual Offences Act, 2012.

It was registered as FIR No. 118 of 2014, at P.S.

Sahaspur, District Dehradun ("the FIR No. 118 of 2014").

According to it, her daughter aged 15 years then was

raped by accused Furkan. The victim was taken in a

hospital at Herbertpur, Dehradun, where Dr. Rekha gave

some medicine due to which the condition of the victim

deteriorated. One Kallu also threatened the informant to

life.

4. The respondent no. 2, Smt. Yasmeen filed Writ

Petition (Criminal) No. 631 of 2014 ("the first petition") for

quashing the FIR No. 118 of 2014 filed by Smt. Shama

Parveen. In the first petition, interim directions were

issued on 05.06.2014 with the direction that no coercive

steps should be taken against the respondent no. 2. It

may be noted here that the respondent no. 2 Smt.

Yasmeen had filed the first writ petition in the name of Dr.

Rekha Rani. The investigation continued in the FIR No.

118 of 2014 and, after investigation, the Investigating

Officer submitted a chargesheet.

5. Thereafter, another petition was filed by

respondent no. 2 Smt. Yasmeen impersonating herself as

Dr. Rekha Gupta, which was registered as C-482 No. 669

of 2015 ("the second petition"). The second petition was

dismissed on 05.06.2015. It appears that thereafter non-

bailable warrants were issued in the matter. Thereafter,

the petitioner moved C-482 Petition No. 1566 of 2015,

Rekha Gupta v. State ("the third petition"), before this

Court and it is then revealed that the first petition and

second petition, which were filed in the name of Dr. Rekha

Gupta were, in fact, filed by the respondent no. 2,

Yasmeen, impersonating as Dr. Rekha Gupta. During the

course of hearing of the third petition, the respondent no.

2 was present before the Court. She was questioned by

the Court and what she stated has been reproduced by

the Court in its order dated 04.01.2016, which is as

hereunder :-

"Ms. Yasmeen is present in person before this Court duly identified by Mr. Abhishek Verma, Advocate. Ms. Yasmeen has stated before me that she was working with Dr. S.B. Gupta in his clinic as Receptionist; she has joined the clinic of Dr. S.B. Gupta in the year 2010; Dr. Rekha Gupta (petitioner present in person) was not physically present in Vikas Nagar and was away from Vikas Nagar, therefore, Dr. S.B. Gupta has pressurized her to have physical relations with him. Further stated that in fact Dr. S.B. Gupta has forcefully made physical relations with her; fearing the loss of job, she kept on facing sexual harassment made by Dr. S.B. Gupta; Dr. S.B. Gupta has produced all the documents of other two petitions before her to sign as Dr. Rekha Rani, which she has signed under the pressure of Dr. S.B. Gupta. She further stated that Dr. S.B. Gupta has not only ruined her character but has also ruined her future by getting her signatures on other two petitions forcing her to sign those petitions as imposter of Rekha Rani. Further stated that Dr. Rekha Gupta, petitioner present in person, and her husband Dr. S.B. Gupta are in Government job, however, have opened and were running the clinic illegally showing Yasmeen as Dr. Rekha Rani. Further stated that Dr. Rekha Gupta was having complete knowledge that she (Yashmeen) was being pressurized to sign the papers as Dr. Rekha Gupta. Further stated that she and her husband Rashid Ali also attended the court proceedings and Mr. Rajat Mittal, Advocate did not know her personally."

6. Having considered the facts, the Court on

04.01.2016, in the third petition observed as hereunder:-

"From the statements made hereinbefore, prima facie it is, thus, clear that both the previous petitions were filed by Yasmeen posing herself as Dr. Rekha Rani. It is also clear that Mr. Rajat Mittal has identified Yasmeen as Dr. Rekha Rani. The questions as to whether Yasmeen was subjected to physical assault and rape by Dr. S.B. Gupta and as to whether she was forced to sign both the previous petitions as Rekha Rani; and as to whether Mr. Rajat Mittal was in fact not knowing Yasmeen and has identified Yasmeen as Rekha Rani under the pressure of Dr. S.B. Gupta require probe. It is also required to be investigated as to whether Dr. S.B. Gupta and his wife Dr. Rekha Gupta were running illegal clinic, while in Government job, posing Yasmeen as Dr. Rekha Rani. Prima facie, it further seems that fraud was played on this Court by filing previous two petitions."

7. Thereafter, the Court, in the third petition

issued directions for lodging of the FIR against Yasmeen @

Rekha Rani, Dr. S.B. Gupta and Dr. Rekha Gupta for the

offences punishable under Sections 193, 195-A, 376, 420

& 120-B IPC. Accordingly, FIR No. 02 of 2016 was lodged

at Police Station Mallital, Nainital against the petitioner,

the respondent no. 2 and Dr. S.B. Gupta. After

investigation, chargesheet No. 06 of 2016 has been

submitted against the petitioner, the respondent no. 2

Yasmeen and Sri S.B. Gupta. Cognizance was taken on

this chargesheet, but it was again challenged by the

petitioner in C-482 No. 748 of 2016, Dr. Rekha Gupta v.

State of Uttarakhand ("the fourth petition"). The fourth

petition was dismissed on 30.06.2016. The case was

committed for trial and this is how the proceedings of

Sessions Trial No. 57 of 2016, State v. Yasmeen and

others, instituted in the court of 2nd Additional Sessions

Judge, Nainital ("the sessions trial").

8. In the sessions trial, after five witnesses were

examined, the respondent no. 2 moved an application

under Section 306/307 of the Code seeking pardon. This

application was objected to by the petitioner as well as by

the prosecution. In her application, the respondent no. 2

has narrated the story, as told by her in the third petition

before this Court.

9. The petitioner objected to the application filed

by the respondent no. 2 on the ground that the main

accused Dr. S.B. Gupta has already expired, therefore, the

application filed by the respondent no. 2 is not

entertainable. There are other grounds as well.

10. The prosecution objected to the application filed

by the respondent no. 2 on the ground that the

application has been filed without any solid basis and the

matter has been lodged on the directions of this Court.

Five witnesses have already been examined, who have

deposed against the respondent no. 2. Therefore,

according to the prosecution, the application filed by the

respondent under Section 306/307 of the Code deserves

to be dismissed.

11. After hearing the parties, by the impugned

order, the application under Section 306/307 of the Code

filed by the respondent no. 2 has been allowed. It is

impugned herein.

12. Heard learned counsel for the parties and

perused the record.

13. Mr. Rakesh Thapliyal, learned Senior Counsel

for the petitioner would submit that the impugned order is

not in accordance with law. The chargesheet has been

submitted against respondent no. 2 for the offences

punishable under Sections 193, 420 & 120-B IPC and

against the petitioner for the offences punishable under

Sections 202, 420 & 120-B IPC. Chargesheet was

submitted against Dr. S.B. Gupta for the offences

punishable under Sections 195-A, 420, 120-B IPC and

Section 376 IPC also, for which the respondent no. 2 was

allegedly the victim. But, now it is argued that, since

Dr. S.B. Gupta has died and the case stood abated against

him, the respondent no. 2 no more remains victim in the

case and therefore there is no question of accepting her

application under Section 306/307 of the Code.

14. Learned Senior Counsel for the petitioner also

submitted that, in fact, grant of pardon is the prerogative

of the prosecution. It is for the prosecution to decide as to

whether pardon has to be given or not. If the prosecution

objected to an application filed by an accused for grant of

pardon, such application may not be allowed.

15. In support of his arguments, learned Senior

Counsel for the petitioner placed reliance on the judgment

in the case of Lt. Commander Pascal Fernandes v. State of

Maharashtra & Others, AIR 1968 SC 594; Satish Neeraj v.

The State of Madhya Pradesh, Cr. R. No. 739 of 2013,

decided on 04.09.2014 and Surendra v. State of

Rajasthan, 2015(2) RLW 1747 (Raj.).

16. In the case of Lt. Commander Pascal Fernandes

(supra), the Hon'ble Supreme Court discussed the scope of

grant of pardon by the courts and in para 15 cautioned

that the Special Judge must not take on himself the task

of determining the propriety of tendering pardon. The

Hon'ble Supreme Court observed as hereunder:-

"15. In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or

(c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8(2) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several may be tendered pardon. But even where the accused directly applies to the Special Judge, he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prossecuting joins tendered pardon because it does not need approver's

testimony. It may also not like the tender of pardon to the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the public prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided. Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail. It will accordingly be dismissed."

(emphasis supplied) (

17. In the case of Satish Neeraj and Surendra

(supra), the principles of law as laid down in the case of Lt.

Commander Pascal Fernandes (supra) have been followed.

18. On the other hand, Mr. Lokendra Dobhal, the

learned counsel appearing for the respondent no. 2 would

submit that the principles of law as laid down in the case

of Lt. Commander Pascal Fernandes (supra) are not

applicable in the instant case because in that case the

Special Judge had the powers to grant pardon under

Section 8(2) of the Criminal Law (Amendment) Act, 1952,

which is distinct to the provisions as contained under

Section 306/307 of the Code. Learned counsel also raised

the following points in his submission:-

(i) The question of grant of pardon is between the

court and the accused.

(ii) Even if the prosecution supports an application

of an accused for grant of pardon, it is not

obligatory on the court to grant pardon. The

court has to take a conscious decision on the

subject.

19. On this point, the learned counsel for the

respondent no. 2 placed reliance on the principle of law as

laid down in the case of Central Bureau of Investigation v.

N.K. Amin & 3 others, 2010 SCC OnLine Guj 11728.

Specific reference has been made to para 37 of the

judgment, which is as hereunder:-

"37. The attempt was made by the learned Sr. Counsel Mr. Tulsi, by relying upon the decision of the Apex Court in the case of

"Commander Pascal Fernandes, Lt. v. State of Maharashtra", reported in AIR 1968 SC 594 (supra), to contend that if the prosecution joins the request for pardon, the learned Magistrate would be required to grant pardon and further attempt was made to contend that there would be no option but to grant pardon to the said witness. We cannot agree with the contention of the learned Counsel for two reasons; one is that the Parliament has not clothed the power for grant of pardon to the prosecution, but has given power to the Court or the Magistrate concerned. When the power is vested to a judicial officer, it means that even if the accused is seeking pardon under Section 306 and the prosecution supports the application made by the accused seeking pardon, then also the same by itself is not sufficient, but it is for the Court to examine the aspects for exercise of power for grant of pardon may not be as veritable director of the prosecution, but as a judicial authority to advance the interest of justice of that particular case. Secondly, it cannot be said that it leaves no room for the learned Magistrate to decline the grant of pardon in a given case if it is found that the prosecution has joined the request for grant of pardon of the accused with some

extraneous consideration other than those for advancement of interest of justice or that it frustrates the interest of justice. Therefore, it can hardly be said that in all cases merely because one of the accused has made the application for grant of pardon under Section 306 of Cr.P.C., and the prosecution has joined the request for grant of pardon without satisfying the learned Magistrate that the approver's evidence would be in the interest of successful prosecution of the other offenders whose conviction is not easy without approver's testimony, the learned Magistrate has to grant pardon. The fact that the Parliament has vested the power to the learned Magistrate i.e. Judiciary to grant of pardon as per the provisions of Code of 1973, means that judicial authority in the system of administration of justice is to decide as to whether the pardon should be granted or not and while taking such decision apart from the stand of the accused concerned, who has applied for pardon and the prosecution, which is to decide the mode and manner of success in the prosecution for conviction, it would be also required to examine as to whether grant of such pardon would result into advancing the interest of justice or not. If in a given case the Magistrate is of the opinion that grant of pardon would not result into advancement of interest of justice he may decline the pardon."

(emphasis supplied)

20. Learned counsel for the respondent no. 2 has

also placed reliance on the principle of law as laid down in

the case of M.M. Kochar, v. The State, AIR 1969 Delhi 21.

21. In the case of M.M. Kochar (supra), the Hon'ble

Supreme Court discussed the scope of Section 337 (of the

old Code) with regard to grant of pardon and observed as

hereunder:-

"14. By sub-sec. (1) of Sec. 337 power is given to the Dist. Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the First Class to tender a pardon to any person at any stage of the investigation or enquiry into, or the trial of the offence. Even though such Magistrate is required by sub-section (1-A) of Section 337 to record his reasons for tendering pardon, it cannot be argued that such tender would become revisable by the High Court under Section 435 of the Code of Criminal Procedure if it is made at the stage of investigation or enquiry. Nor can it be suggested that the other persons against whom investigation or inquiry is going on in connection with the same offence can have any

right to object to the making of a tender of pardon. Therefore, the mere fact that reasons have to be recorded cannot convert the tender of pardon into a judicial act revisable by the High Court under Section 435 of the Code of Criminal Procedure. The tender of a pardon and its acceptance by the person concerned is a matter entirely between the Court concerned and the person to whom it is made and if the tender of a pardon is accepted by the accomplice concerned, the only obligation placed upon the prosecution is to examine him as a witness in the case. He will then be subjected to cross-examination by the co-accused and it will be for the co-accused to show by such cross- examination that the statement that is made by the accomplice is a false statement."

22. Learned counsel for the respondent no. 2 would

also submit that, in fact, a co-accused has no right to

object to an application filed for pardon submitted by an

accused. In support of his contention, the learned counsel

has relied upon on the judgment in the case of Central

Bureau of Investigation v. Ashok Kumar Aggarwal and

another, (2013) 15 SCC 222.

23. In the case of Ashok Kumar Aggarwal (supra), in

fact, when an accused moved an application that he has a

right to object to the application moved by the co-accused

for grant of pardon, it was rejected and then the matter

went up to the Hon'ble Supreme Court. This has been

reproduced by the Hon'ble Supreme Court in para 10 of

the judgment, which is as hereunder:

"10. Respondent 1 moved an application on 3-5-2001 claiming that he had a right to oppose the application filed by Respondent 2 seeking pardon. However, the said application was rejected by the learned Special Judge on the same day. The said order dated 3-5-2001 rejecting the application of Respondent 1 claiming the right to oppose the application filed by Respondent 2 was affirmed by the High Court vide order dated 10-7-

2001 and by this Court vide order dated 8-10- 2001."

24. In fact, in the case of Ashok Kumar Aggarwal

(supra), it was the respondent no. 2, who had sought

pardon and it was co-accused, the respondent no. 1, who

had moved an objection to it. After examining the issue

with regard to grant of pardon, in para 40 of the judgment

in the case of Ashok Kumar Aggarwal (supra), the Hon'ble

Supreme Court observed as hereunder:-

"40. So far as the entertainment of the case at the behest of the respondent by the High Court is concerned, we may state that he may not have a legal right to raise any grievance, particularly in view of the law laid down by this Court in Ranadhir Basu v. State of W.B. 1 However, the revisional powers under Section 397 read with Section 401 CrPC can be exercised by the court suo motu, particularly to examine the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceeding of the inferior court. These two sections in CrPC do not create any right in the favour of the litigant but only empower/enable the High Court to see that justice is done in accordance with recognised principles of criminal jurisprudence. The grounds of interference may be, where the facts admitted or approved, do not disclose any offence or the court may interfere where the facts do not disclose any offence or where the material effects of the party are not considered or where judicial discretion is exercised arbitrarily or perversely. (See also Everest Apartments Coop. Housing Society Ltd. v. State of Maharashtra2 and State of U.P. v. Kailash Nath Agarwal.3

1. (2000) 3 SCC 161 : 2000 SCC (Cri) 587

2. [AIR 1966 SC 1449

3. (1973) 1 SCC 751 : 1973 SCC (Cri) 698 : AIR 1973 SC 2210

25. Learned State Counsel would submit that the

evidence of respondent no. 2 is not necessary for

prosecution to prove its case either against the petitioner

or the respondent no. 2. It is argued that because of this

reason, the prosecution has objected to the application

filed by the respondent no. 2 for grant of pardon.

26. During the course of argument, learned counsel

for the private respondent also raised an issue that since

the co-accused has no right to raise an objection and

State has not preferred any petition before this Court

challenging the order impugned, the instant petition may

be dismissed.

27. It may be noted here at this stage only that in

the case of Ashok Kumar Aggarwal (supra), in para 40 of

the judgment, as quoted above, the Hon'ble Supreme

Court has observed that despite the fact that co-accused

has no right to object to the application filed by an

accused for grant of pardon, the High Court may in its

revisional power examine the correctness, legality and

propriety of the order granting pardon. The court observed

that "These two sections in CrPC do not create any

right in the favour of the litigant but only

empower/enable the High Court to see that justice is

done in accordance with recognised principles of

criminal jurisprudence".

28. In view of the judgment in the case of Ashok

Kumar Aggarwal (supra), undoubtedly co-accused has no

right to object to an application filed by an accused for

grant of pardon, but since this matter has come up before

this Court, the question is - can it be examined by this

Court on its own?

29. This is a petition under Section 482 of the Code

and the jurisdiction is quite wide but much guided by the

principles as laid down by the Hon'ble Supreme Court. It

is a jurisdiction to make orders as may be necessary to

give effect to any order under the Code or to prevent abuse

of the process of any court and, in other words, to secure

the ends of justice.

30. In the case of Dinesh Dutt Joshi v. State of

Rajasthan and another, (2001) 8 SCC 570, the Hon'ble

Supreme Court discussed the scope of jurisdiction under

Section 482 of the Code and observed in para 6 of the

judgment as hereunder:-

"6. Section 482 of the Code of Criminal Procedure confers upon the High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a well-established principle of law that every court has inherent power to act ex debito justitiae -- to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the court. The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non

potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases."

(emphasis supplied)

31. In view of the scope of jurisdiction under

Section 482 of the Code, this Court is of the view that

definitely the legality of the order impugned may be

examined in these proceedings.

32. The instant case is a kind of peculiar case. The

respondent no. 2 is an accused as well as a witness. She

has been shown at Sr. No. 13 as the victim/accused in the

chargesheet. She has been shown victim because she has

stated that Dr. S.B. Gupta raped her, and forced her to

impersonate the petitioner. As stated, Dr. S.B. Gupta has

already died and the case stood abated against him.

Therefore, the respondent no. 2 no more remains a victim

in the case, which is pending against her. As stated,

respondent no. 2 is facing trial for the charge under

Section 193, 420 & 120-B IPC and the petitioner is facing

trial for the charge under Sections 202, 420 & 120-B IPC.

The respondent no. 2 has her version as to why

and under what circumstances, did she impersonate the

petitioner. The provisions relating to tender of pardon are

contained under Sections 306 and 307 of the Code. The

accused becomes a witness. Why? What is the basis

behind it?

33. In the case of Suresh Chandra Bahri v. State of

Bihar, 1995 Supp (1) SCC 80, the Hon'ble Supreme Court

in paragraph 42 discussed the object of the provision

relating to tender of pardon and observed as hereunder:-

"........Since many a times the crime is committed in a manner for which no clue or any trace is available for its detection and, therefore, pardon is granted for apprehension of the other offenders for the recovery of the incriminating objects and the production of the evidence which otherwise is unobtainable. The dominant object is that the offenders of the heinous and grave offences do not go unpunished, the Legislature in its wisdom considered it necessary to introduce this section and confine its operation to cases mentioned in Section 306 of the Code. The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence".

34. Before discussing further, it would be apt to

reproduce sub-section (1) of Section 306 of the Code. It is

as hereunder:-

"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 relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof."

35. A bare perusal of sub-section (1) of Section 306

reveals that the tender of pardon is granted on condition

to make a full and true disclosure of the whole of the

circumstances within the knowledge of the person, who

seeks such pardon.

36. In the case of Lt. Commander Pascal Fernandes

(supra), in para 15 of the judgment as quoted hereinabove,

the Hon'ble Supreme Court categorically observed that "It

is not for the Special Judge to enter the ring as a

veritable director of prosecution." The Hon'ble Supreme

Court also cautioned the Magistrates and Judges in the

matter of tender of pardon to avoid proceeding suo moto.

37. It is true that the pardon in the case of Lt.

Commander Pascal Fernandes (supra) was granted by a

Special Judge constituted under Criminal Law

Amendment Act, 1952. Section 8 of the Criminal Law

(Amendment) Act, 1952 is as hereunder:

"8. Procedure and powers of special judges. (1) A special judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of warrant cases by magistrates.

(2) A special judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of sections 339 and 339A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under section 338 of that Code.

(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special judge; and for the purposes of the said provisions, the court of the special judge shall be deemed to be a court of session trying cases without a jury or without the aid of assessors and the persons conducting a prosecution before a special judge shall be deemed to be a public prosecutor."

38. But, the Hon'ble Supreme Court has examined

the distinction between the Criminal Law (Amendment)

Act, 1952 and the Code and observed that "When the

case is before that Special Judge the tender of pardon

can only be by the Special Judge and it is deemed to

be one under Section 338 for purposes of Section 339

and 339-A as explained above. The fiction is necessary

because no committal proceeding is necessary before a

case is sent to a Special Judge." In fact, Section 8(2) of

the Criminal Law (Amendment Act), 1952 nowhere makes

any provision that the application for grant of pardon

should be moved through the public prosecutor. There is

no such specific requirement under Section 306 or 307 of

the Code as well. Therefore, it cannot be said that the

principles of law as laid down in the case of Lt.

Commander Pascal Fernandes (supra), are not applicable

in the instant case. The principles with regard to grant of

pardon are similar under both the provisions i.e. under

Section 8 of the Criminal Law (Amendment) Act, 1952 and

under the Code.

39. This matter can be examined from another

aspect as well. After all, it is the prosecution, who has to

examine the witnesses. It is the prosecutor to select as to

how many and who amongst the chargesheeted witnesses

may be required to be examined before the court. It is the

discretion of the prosecution. Once the prosecution

exercises its discretion, if the court considers that there

are some other witnesses named in the chargesheet, or

otherwise, who are required to be examined for the

effective adjudication of the case or to unearth the truth,

the court may summon such witnesses. There is another

stage as well. The defence may also examine the witnesses

to show his innocence.

40. Therefore, to conclude, this Court is of the view

that undoubtedly an application for tender of pardon has

to be supported by the prosecution. If the prosecution

objects to this application, such application should not be

entertained.

41. But reverse to it is not true, which means that if

an accused moves an application duly supported by the

prosecution, the court is not bound to accept such an

application. The court has to take a conscious decision as

to why to tender a pardon. Is it necessary to unearth the

truth? Or, to get the incriminating circumstances, which

may be required in any complicated and complex cases?

But, instant is not such a case. In the instant case, the

respondent no. 2 herself had admitted before this Court in

the third petition that she impersonated the petitioner in

the first petition and the second petition. She has given

explanation to it. In so far as the case against the

respondent no. 2 is concerned, the record of the case, the

statements of the respondent no. 2 and other witnesses

and her admission before this Court may be produced by

the prosecutor. In fact, the prosecution has already

examined five witnesses. In so far as the role of the

petitioner is concerned, it is the case of the respondent no.

2 that she was compelled to impersonate the petitioner.

This has to be proved by the respondent no. 2. She may

prove her innocence by adducing evidence or, if she is so

advised or considers appropriate, she may appear as a

witness under Section 315 of the Code. But, having

considered the entirely of the facts, this Court is of the

view that there is no reason to tender pardon to the

respondent no. 2. The application of the respondent no. 2

under Section 306/307 of the Code was liable to be

rejected, which has wrongly been allowed.

42. In view of the discussions made above, the

petition deserves to be allowed.

43. The petition is allowed. The impugned order

dated 09.09.2019 passed in Sessions Trial No. 57 of 2016,

State v. Yasmeen & others, by the court of 2nd Additional

Sessions Judge, Nainital is hereby set aside. The

application 80 A filed by the respondent no. 2 under

Section 306/307 of the Code in the sessions trial, is

rejected.

44. The case relates to a fraud played upon the

Court, as observed by this Court on 04.01.2016 in the

third petition. Therefore, this Court requests that the

sessions trial be concluded expeditiously. If possible, the

hearing may be done on day to day basis.

(Ravindra Maithani, J.) 12.11.2021 Avneet/