Madras High Court
Senthamarai vs S. Krishnaraj And Anr. on 7 December, 2001
Equivalent citations: 2002CRILJ2375
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. S. Krishnaraj, the husband becomes an approver against his own wife Senthamarai in a criminal proceeding. Having failed in her attempt to prevent the trial Court from tendering pardon to her husband and declaring him as an approver, the petitioner/wife is before this Court through this criminal revision petition challenging the order granting pardon.
2. On the complaint of one Dhanalakshmi Ammal, a case was registered against the petitioner Senthamarai and her husband Krishnaraj and others alleging that they fabricated false and forged documents, the Will and Deed of Assumption with forged signature of the said Dhanalakshtni Animal and her husband Nataraj Chettiar in order to get the entire properties in favour of Senthamarai and to have total control over the Institutions run by the Trust and got it registered with the Sub-Registrar at Rajapalayam on 4.7.1995. After finishing investigation, on 18.11.1999 the charge sheet was filed against Senthamarai/wife, Krishnaraj/husband, Palani Murugan, the car driver and one Balasubramaniam, the Sub-Registrar of Rajapalayam. The case was taken on file in C.C.No.2 of 2000. Before the commencement of trial, husband Krishnaraj gave judicial confession to Judicial Magistrate-II, Srivlliputhur under Section 164 of Cr.P.C. alleging that the said documents were forged and falsely fabricated with the help of all the accused in pursuance of conspiracy, Since the second accused husband wanted to become an approver, the CB CID, the prosecuting agency filed an application before the Judicial Magistrate-I, Virudhunagar under Section 386 of Cr.P.C. In Crl.M.P.No.2156 of 2000 requesting pardon for the said Krishnaraj on 28.6.2000. On the very same day, the first accused Senlhamarai, the petitioner herein filed an objection. The trial Court after considering the petition and counter and hearing the counsels for the parties, passed an order on 28.7.2000 granting pardon to the second accused Krishnaraj. This is the subject matter of challenge in this revision,
3. Mr. Asokan, the learned senior counsel while assailing the impugned order would make the following contentions:
(1) Even though the case was registered in 1996 and the charge sheet was filed in 1999, the approver did not choose to give any confession under Section 164 of Cr.P.C. and the belated application seeking for pardon on the basis of his confession which was given after the charge sheet was filed would not show bona fide as the same was filed in order to escape from the punishment. Furthermore, the statement under Section 164 of Cr.P.C. cannot be considered to be confession since it is self- exculpatory.
(2) From the year 1996, in which year the case was registered, the stand of the accused Krishnaraj in the application filed before the different forum that the allegations levelled against him and others are absolutely false. The sudden change in his stand for seeking for pardon and consequent filing of the application requesting the Court to treat him as an approver would constitute an abuse of process of Court.
(3) In the year 1999-2000. Krishnaraj, petitioner's husband had indulged in several irregularities relating to the family properties and Trust properties. When the petitioner/wife tried to check him, he attacked her and caused injuries to her. Therefore, the petitioner filed a criminal complaint and also filed civil proceedings against her husband. Having suffered with various interim orders and complaints, the husband Krishnaraj colluded with the complainant Dhanalakshmi Animal and conspired to make such a false statement under Section 164, Cr.P.C. and also to seek pardon to act as an approver.
(4) The order tendering pardon to the accused Krishnaraj would become unnecessary in view of the availability of the other materials collected by the prosecution to prove the case against all the accused.
4. In reply to the said submissions, the counsel for the first respondent/husband and the Additional Public Prosecutor appearing for the second respondent-Inspector of Police, CB CID, would submit in justification of the impugned order granting pardon to the first respondent herein.
5. The counsel for the parties would cite several authorities, which we shall see later.
6. On going through the petition and on considering the submissions made by the counsel for the parties, I am of the view that the contentions urged by the counsel for the petitioner would lack substance since the impugned order would not suffer from infirmity. The reasons are as follows.
7. There is no dispute in the fact that the petitioner Senthamarai is the adopted daughter of Dhanalakshmi Ammal, the complainant and the first respondent Krishnaraj is the husband of the petitioner and J.K.K. Nataraj Chettiar, the husband of the said Dhanalakshmi Ammal was owning several properties. During his life time, J.K.K. Nataraj Chettiar was running three spinning Mills and managing several Educational Institutions.
8. It is stated that the petitioner, the adopted daughter of J.K.K.Nataraj Chettiar and Dhanalakshmi Animal wanted to grab the entire properties and Educational Institutions for herself defeating the interest of the other legal heirs of J.K.K. Nataraj Chettiar and wanted to take control over the Educational Institutions and trust.
9. It is the case of the prosecution that A1 wife and A2 husband with the help of A3 car driver preplaned to create false and fabricated will and deed of assumption documents by forgoing the signature of both Nataraj Chettiar and Dhanalakshmi Animal and accordingly, prepared the said forged documents and got them registered at Rajapalayam on 4.7.1995 with the connivance of the Sub Registrar one Balasubramaniam, who is the fourth accused in this case. After the death of J.K.K.Nataraj Chettiar, Dhanalakshmi Ammal came to know of these illegal acts. Therefore, she gave a complaint on 26.3.1996 to CB CID Police which was registered against seven accused under Sections 419, 420, 467 and 468.IPC.
10. After investigation, the charge sheet was filed on 18.11.1999 against four accused, as indicated above, for the offences under Sections 465, 467, 468, 471 and 420 1PC and Section 82(c) and 82(d) of the Indian Registration Act, 1908 read with 120(B), IPC. This was taken on file for the above offences in C.C.No.2 of 2000. Before the commencement of trial, the first respondent/husband wanted to give confession to the Judicial Magistrate-11. Srivilliputhur and accordingly, his confession was recorded. Thereafter, on the basis of the said confession giving full details about the commission of offences, the prosecution filed an application for tendering pardon on 28.6.2000 before the trial court in Crl.M.P.No.2l56 of 2000. It is specifically stated in the said application that the accused Krishnaraj had given a statement before the Judicial Magistrate-II, Srivilliputhur incriminating himself and others in the commission of the offences and it is considered necessary to obtain the direct evidence of the accused in this case and therefore, it is requested to tender pardon under Section 306, Cr.P.C. to the accused Krishnaraj.
11. Curiously on the very same day, the petitioner (A1) fifed an objection petition. The main objection in the said petition was that no pardon could be tendered to him and he should not be allowed to become a approver, as he wanted to escape from the punishment. The trial court had considered the objection and overruled the same and granted pardon to the accused Krishnaraj.
12. It is settled law as laid in Faqir Singh v. Emperor, AIR 1938 PC 266, M.M. Kochar v. Stale, 1969 Crl. L.J.45 that the co-accused cannot question the act of granting pardon by the Court to one of the accused, as that is an internal matter of administration, which cannot affect the position of the accused or the approver.
13. The tender of pardon and its acceptance by the person concerned is a mailer entirely between the court concerned and the person to whom it is made. If the tender of pardon is accepted by the accomplice concerned, the only obligation placed upon the prosecution is to examine him as a witness in the case.
14. Whether the statement made by the accused seeking for pardon is voluntary or not is to be decided by the Court alone. If it is the case of the other accused that the statement of the approver is wrong and belated, it has to be established by subjecting the approver to cross-examination that the statement made by him was a false statement.
15. The pardon proceeding which takes before the Magistrate is neither an enquiry nor a trial in which an opportunity must be given to the other accused to show to the court that the statement of the accused seeking pardon is not true. Only during the course of trial, the opportunity will be given to the accused to show to the court that the approver's evidence at the trial is untrustworthy in view of the contradictions or improvements made by him by allowing the accused to cross-examine.
16. From these principles laid down in various decisions, it is clear that the other co-accused cannot be competent enough to tell the court that the statement of the person concerned is false and therefore, the pardon cannot be granted. Therefore, the contention with regard to the difference stand taken by accomplice may not deserve acceptance.
17. Similarly, the accused cannot question the stage at which the pardon has been granted. As a matter of fact, Section 306 Cr.P.C. would provide that the Chief Judicial Magistrate of any Magistrate of the first class inquiring into or trying the offence may tender pardon at any stage of the inquiry or trial.
18. In Narayan Chetanram Chaduary v. State of Maharashtra, , it is held as follows:
"No time limit is provided for recording such a statement and delay by itself is no ground to reject the testimony of the accomplice. Delay may be one of the circumstances to be kept in mind as a measure of caution for appreciating the evidence of the accomplice . Human mind cannot be expected to be reacting in a similar manner under different situations. Any person accused of an offence, may at any time before the judgment is pronounced, repeat for his action and volunteer to disclose the truth in the court. Repentance in a condition of mind differing from person to person and from situation to situation."
Therefore, there is no merit in the above contention as well.
19. It is contended that the statement given by the accused, the first respondent is a self-exculpatory and has given such a statement implicating others in order to escape from the punishment.
20. This submission, in my view, is factually incorrect. On going through the statement under Section 164, Cr.P.C. given by the first respondent Krishnaraj, it is clear that he was a party to the conspiracy as well as party to the entire acts of fabrication of forged documents and registration of the same with the help of A4 sub Registrar. As a matter of fact, he would state that the preparation of documents and the forgoing of signatures of Nataraj Chettiar and Dhanalakshmi Animal in two documents by the other accused were only with his knowledge.
21. Though he had not stated that he took dominant role in the preparation of documents by putting forged signatures in the fabricated documents, for granting pardon under Section 306 Cr.P.C., it is not a pre-requisite condition that the statement of a person on whose behalf pardon is sought must be in the nature of confession or he must implicate himself fully in the offence. What the section requires is to obtain statement from the person who is supposed to be directly or indirectly concerned in or privy to the offence and such a person can be granted pardon on the condition of his making a full and true disclosure of whole of the circumstance within his knowledge relative to the offence.
22. Section 306, Cr.P.C would provide that while granting of pardon, all that has to be seen by the court is as to whether the approver was directly or indirectly concerned with the offence or he was supposed to have been privy to the offence. The emphasis is on the word "supposed". This word " supposed" does not mean that such a person should have fully participated in the crime. Thus, the very basis of the section is that a person who applies for pardon under the provisions of Sections 306 and 307 can be assumed to be directly or indirectly concerned in the offence. Similarly, he may be assumed to be privy to the offence. Thus, the person applying may not be actual culprit, and there does not arise any question of exculpating one's own self. Further, such a person should be supposed to be directly or indirectly concerned or privy to the offence. Meaning of the term 'concerned' also shows that such a person may be somehow directly or indirectly connected with the offence. He may have some interest therein or the incident which led to the offence may be of some importance to him.
23. These principles have been laid down in Maosi Nainsi Jain v. State of Maharashtra, 1985 Crl.L.J 1818, State of Gujarat v. Ramsi Devasi Bhil, 1991 Crl.L.J 2801 and Maghar Singh v. State of Punjab, .
24. In the light of the above decisions, if we look at the statement of the first respondent given before the Magistrate, it cannot be said that he was not a privy to the offence. On the other hand, his statement clearly shows that he was a privy to or a conspirator in the commission of the offence. The Judicial Magistrate who granted pardon to the approver was fully satisfied that the statement of the approver was his full and complete disclosure of the act which he undoubtedly did. Therefore, this contention also would fail.
25. The next contention urged by the counsel is that there are already evidence available and as such, the evidence of approver is unnecessary.
26. In a series of cases, the accepted legal position is that the guiding principle for tendering of pardon to an accomplice is to prevent the escape of offenders from punishment in grave cases for lack of evidence.
27. Section 306 would enable the judicial Magistrate to lender a pardon to any person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence with a view to obtaining the evidence of that person. In order to exercise this power, the person to whom pardon is to be given must be directly or indirectly concerned in or privy to the offence, which is being tried before the concerned Judicial Magistrate and the pardon is to be given only for the definite purpose of obtaining the evidence of the person concerned.
28. Section 306 of the Code lays down a clear exception to the principle that no inducement shall be offered to a person to disclose what he knows about the procedure. Since many a times the crime is committed in a manner for which no clue or any track is available for its detection and, therefore, pardon is granted" for apprension of the other offenders for 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 to 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, by the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence.
29. The powers under Section 306, Cr.P.C ought to be exercised where the prosecution considers that the evidence of an accomplice is necessary
30. These principles have been laid down in In Re Kandaswami Gounder, , S.K.Baruah v. M/s Assam Tea Brokers Pvt. Ltd, 1995 Crl.L.J 2361, Keshav v. Emperor, AIR 1935 Bom. 186 and Suresh Chandra Bahri v. State of Bihar, 1995 SCC (Crl.) 60.
31. In the light of the above principles, the contention of the State with regard to the necessity of taking an approver has to be considered.
32. As indicated above, in the application filed by the prosecution under Section 306, Cr.P.C., it is specifically stated as follows:
Krishnaraj, the accused had given a statement before the Judicial Magistrate No.II Srivilliputhur, incriminating himself and others in the commission of the offences, it is considered necessary to obtain the direct evidence of the accused in this case."
33. This statement made by the prosecuting agency before the trial court cannot be ignored, in view of the fact that the statement of the accused fro granting pardon would disclose that there is a direct evidence for the offences of forgery and using the forged documents with the connivance of Sub Registrar at Rajapalayam and thereby, the entire properties belonging to Nataraj Chettiar, and Dhanalakshmi Ammal have been grabbed.
34. It is true that while filing the charge sheet, the documentary evidence which was collected by the prosecution during the course of investigation, available in the form of Expert's opinion to prove that those documents are forged. But, the evidence of the approver who was a party and Privy to the said offences including conspiracy would be a direct evidence which would corroborate the documentary evidence which is already available in the form of Expert's opinion.
35. As held by this Court as well as the Apex Court on various occasions, mere Expert's opinion would not be a sufficient material to prove that culpability of the person concerned. But, now the prosecution is able to produce substantive evidence through the approver which would clinchingly prove that the acts were committed by all the three accused. If the case of prosecution is true, then the offences committed by the accused persons are so serious and heinous. In these type of cases, the offenders should not go unpunished merely because of the insufficiency of the evidence. When the substantive evidence is available through the approver, the prosecution is bound to use the same and consequently, the Judicial Magistrate who grants pardon has to exercise his discretionary powers bearing in mind the object of Section 306 which has been introduced for the purpose of preventing the escape of the real offenders from the heinous offence.
36. Furthermore, the observation made by the Supreme court in the recent decision in Jasbir Singh v. Vipin Kumar Jaggi, 2001 Crl. L.J. 3993 would support the view of mine. The same is as follows;
"If the prosecution thinks that the tender of pardon will be in the interests if a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, the court will indubitably agree to the tendering of pardon. The Court must not take on itself the task of determining the propriety of tendering pardon."
This dictum by the Supreme Court would make it so clear that when the prosecution informs the court that the pardon to one of the accused will make the prosecution successful and otherwise the conviction is not easy, the court shall tender pardon.
37. In the light of the discussion and the observation of the Supreme Court, referred to above, the order granting pardon to the first respondent Krishnaraj is well justified and the same would not suffer from any infirmity. Hence, the revision is dismissed, consequently, Crl.M.P.Nos. 4897 and 8167 of 2000 are closed. The trial court is directed to go on with the trial and dispose of the same as expeditiously as possible .