Patna High Court
Prabhat Ranjan Sarkar And Ors. vs The State Of Bihar on 22 August, 1973
Equivalent citations: 1974CRILJ957
ORDER B.P. Jha, J.
1. These two criminal miscellaneous petitions arise out of one commitment order dated the 22nd November. 1972, passed by Shri R. P. Srivastava. Special Munsif -- Magistrate. Patna. Both these petitions were heard together, and therefore this Judgment will govern both these cases.
2. By an order dated the 22nd November. 1972 the committing Magistrate committed the petitioners in both these cases that is. in Criminal Miscellaneous Nos. 5 and 26 of 1973. to stand their trial before the Sessions Court. Against that order the petitioners have moved these two petitions for quashing the commitment order under Section 561A of the Code of Criminal Procedure (hereinafter referred to as 'the Code').
3. Shri A. K. Sen, learned Counsel for the petitioners challenged the validity of the pardon granted to Madhavanand by an order dated the 4th May, 1972 by the District Magistrate Patna on these grounds:
(i). That under the proviso to Section 337 (1) of the Code, the District Magistrate has no jurisdiction to grant pardon during investigation.
(ii). That the order granting pardon is illegal, because the District Magistrate did not record any reason while granting the pardon.
In this connection the learned Counsel for the petitioners, cited a decision of the Supreme Court in the State of U. P. v. Kailash Nath Agarwal . The Supreme Court in that case held at Paragraph 12 as follows:
Similarly where the offence is under investigation it is only a Magistrate having jurisdiction in a place where the offence might be enquired into or tried can exercise the power Even such a Magistrate can exercise that power only if the sanction of the District Magistrate has been obtained. While there is a restriction on the powers of the Magistrate of the First Class no such restriction is to be found in the proviso on the powers of the District Magistrate either at the stage of investigation or inquiry into or trial of the offence It is, therefore, clear from the decision that the District Magistrate has the authority to grant pardon even at the stage of investigation. Shri Deobrata Mookherjee learned Counsel for the State contends that the District Magistrate has the authority to grant pardon during investigation. In my opinion the contention of Mr. Mookherjee is correct.
4. The other contention of the learned Counsel for the petitioners is that the impugned order of the District Magistrate is illegal because he failed to record his reasons while granting pardon, In the above mentioned case, the Supreme Court held that Sub-section (1A) of Section 337 of the Code makes it obligatory on the Magistrate tendering pardon to record his reasons for so doing. In my opinion, it is imperative on the part of the Magistrate granting pardon to record the reasons for so doing. If the reasons are not recorded the order of the Magistrate will not be a 'speaking order. If it is not a 'speaking order', it will be difficult for the revising Court to revise the order in the absence of the reasons. In my opinion Sub-section (1A) of Section 337 is a mandatory provision. If the Magistrate granting pardon does not assign any reason the whole order of the Magistrate can be quashed on this ground alone. If the validity of the pardon is challenged at a very early stage, it is the duty of the Court to get the illegality cured. In this connection, the decision of the Supreme Court in H. N. Rishbud v. State of Delhi is relevant. In that decision, the Supreme Court held as follows at p. 1164:
When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby by appropriate orders at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of Justice.
It is, therefore clear that if the breach of such a mandatory provision is challenged at the earliest stage it is the duty of the Court to rectify such error. The decision would be quite different if such an error is pointed out in an appeal or revision after conviction.
5. The object of Section 337 (1) of the Code is that the Magistrate will tender pardon with a view to obtaining evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence. The Magistrate must come to the conclusion as to what compelled him to grant the pardon and therefore it is essential for the Magistrate to record reasons for so doing. The magistrate may be-compelled to tender pardon to any person on the ground that it was impossible for the prosecution to prove the case in the absence of the evidence of such person (approver). Suppose in a case five eye witnesses are already there. The Magistrate can refuse to grant pardon on the ground that there are enough materials on the record to prove the case and therefore it is not necessary to examine the approver in this case. In this circumstance it is obligatory on the part of the Magistrate to record reasons while granting pardon. On a perusal of the order passed by the Magistrate on the 4th May 1972. it is apparent that no reasons have been assigned by the District Magistrate while granting pardon. In this view of the matter. I quash the order of granting pardon dated the 4th May 1972 passed by the District Magistrate Patna.
6. If the testimony of Madhavanand (approver) is excluded from the commitment proceeding then there is no reliable evidence on the record to show that there were sufficient materials to commit the accused persons to the Court of Session. In this view of the matter, the commitment order is quashed.
7. In the result, I allow the application and remand the whole matter to the Special Magistrate. Patna. to conduct the enquiry afresh in the circumstances mentioned below. The prosecution or Madhavanand will take necessary steps, if so advised to obtain pardon from the District Magistrate in accordance with law and if the pardon is obtained the commitment proceeding will be initiated afresh. The committing Magistrate will examine the approver and other witnesses as may be produced by the prosecution. If he desires to examine any other witness in the interest of justice he can do so.
8. Before parting with this case, I may observe that the District Magistrate while granting pardon shall hear the accused persons also because it is a Judicial Proceeding. If the order of granting pardon is passed during investigation, the accused shall not be heard because till that time no police report (chargesheet under Section 173 of the Code) is preferred against the accused persons. It may be further noted that in the present case, the chargesheet was presented by the Delhi Special Police Establishment and cognizance was taken on the basis of the chargesheet by the Special Magistrate; and therefore on that basis the special Magistrate will conduct fresh enquiry under Chapter XVIII of the Code of Criminal Procedure as indicated above.