Gujarat High Court
Sanjiv Rajendra Bhatt vs State Of Gujarat on 5 August, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 299 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SANJIV RAJENDRA BHATT
Versus
STATE OF GUJARAT
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Appearance:
MR SAURIN A SHAH(791) for the Applicant
MR MITESH AMIN, PP WITH MRS. KRINA CALLA APP for the Respondent
No. 1
MR BHADRISH RAJU WITH MR SHAISHAV S PANDIT(7363) for the
Respondent No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 5/08/2021
CAV JUDGMENT
1. By way of present revision application filed under Section 397 read with Section 401 of the Code of Criminal procedure (hereinafter referred to as the "Code" for short), the applicant assails the order dated 18.03.2021 Page 1 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 passed by the learned Special Judge (NDPS) and 5 th Additional Sessions Judge, Banaskantha at Palanpur, below Exh:67 in Special (NDPS) Case No.3/2018, whereby, the learned Special Judge allowed the application filed by the respondent No.2 herein under Section 307 read with Section 306 of the Code seeking his pardon by promising to reveal and disclose the whole truth and give evidence on behalf of the prosecution.
2. Feeling aggrieved and dissatisfied with the impugned order, the applicant has come up before this Court by this revision application under Section 397 read with Section 401 of the Code.
3. The applicant and respondent No.2 are facing trial in the court of learned Special Judge, Banaskantha at Palanpur, in Special (NDPS) Case No.3/2018 for the offences under Sections 120(b), 117, 167, 204, 343, 465, 471 read with Section 120(b) of the Indian Penal Code and Sections 17, 18, 21, 27(A), 29, 58(1) and 58(2) of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act for short).
4. The facts leading to file present revision can be summarized as under:-
(i) The applicant Sanjeev Bhatt was posted at District Banaskantha as District Superintendent of Police and had served there from 13.10.1995 to 18.10.1996. During the tenure of Mr. Bhatt, Page 2 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 respondent No.2 Mr. I.B.Vyas had served as Police Inspector, Local Crime Branch at Palanpur, Dist.
Banaskantha.
(ii) It is alleged by the prosecution that, when the applicant was posted as District Superintendent of Police, Banaskantha at Palanpur, he and other co- accused have hatched the conspiracy to frame one Sumer Singh Rajpurohit, resident of Pali, Rajasthan State, in a false case of opium, punishable under the provisions of the NDPS Act. It is further alleged that, the applicant being a District Superintendent of Police by influencing his subordinate officer had involved them in the alleged criminal conspiracy. As a part of conspiracy, a false verdhi was being transmitted to control room on 30.04.1996 inter alia stating that, information received by the control room that, at about 06:10 a.m, Sumer Singh Rajpurohit is doing business of Opium and yesterday he brought 5 kgs opium and stayed at Hotel Lajvanti, Palanpur and delivery of the opium has to be given in Palanpur. It is alleged that, prior to the alleged verdhi, the applicant had knowledge that, the verdhi was bogus and false and had made conversation with his subordinate officer i.e. Mr. I.B.Vyas, Police Inspector, Local Crime Branch that, case of NDPS is required to be investigated. It is alleged that, Mr. Sanjeev Bhatt i.e applicant herein directed the concerned to send the verdhi to LCB office and directed Mr. Vyas to investigate the case. Mr. Vyas had raided the Hotel Lajvanti and seized Page 3 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 the contraband opium of 1.15 Kgs. from Room No.305 of the Hotel which was booked in the name of Sumer Singh in the register maintained by the hotel. It is alleged that, after seizure of the opium and upon further inquiry, it was found that, Sumer Singh had left the hotel without informing anybody. Mr. Vyas being a complainant lodged the FIR being Prohibition C.R.No.216/1996 at Palanpur Police Station and investigation was entrusted to Mr. Vyas and during the course of investigation, he had arrested Sumer Singh and produced before the Court and sought his remand. It is alleged that, during investigation, the applicant Mr. Bhatt had directed Mr. Vyas to inquire about the rented shop of Sumer Singh and Mr. Bhatt had also made conversation with Sumer Singh about his shop and threatened him to vacate the same. It is alleged that, during his custody, at the instance of the applicant Mr. Bhatt, report under Section 169 of the Code had been filed by the respondent No.2 Mr. I.B.Vyas, inter alia, stating that, the person occupying the room at hotel was not Sumer Singh and accordingly, Sumer Singh was discharged by the Court and finally, 'A' summary report was filed.
(iii) Two petitions were filed before the Gujarat High Court for further investigation by the State CBI in the matter and this Court vide order dated 03.04.2018 directed the State to form a special investigation team and accordingly, SIT was Page 4 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 constituted and investigation was entrusted to Mr. Virendrasinh Yadav, who had recorded the statements of the witnesses, collected the material evidence, arrested the applicant and Mr. Vyas, PI of Local Crime Branch under the charges as referred to above and finally, on 02.11.2018, chargesheet came to be filed before the Special Court and charges came to be framed by the Special court on 18.09.2019 at Exh:59 under Sections 120(b), 117, 167, 204, 343, 465, 471 read with Section 120(b) and Sections 17, 18, 21, 27(a), 29, 58(1) and 58(2) of the NDPS Act alleging that, the applicant and co- accused have hatched conspiracy to frame Sumer Singh in the alleged offence under the provisions of the NDPS Act. It is alleged that, in order to achieve the object of conspiracy, the applicant financed to procure the opium, fabricated the contents of verdhi, allegedly forged the entry in the hotel register, conspired to plant the opium as alleged, for which, the applicant and respondent No.2 are facing the trial for the offence as referred to above.
5. The accused No.1 - Mr. I.B.Vyas had moved an application at Exh:67 filed under Section 307 r/w Section 306 of the Code, seeking his pardon by promising to reveal and disclose the whole truth and give evidence on behalf of the prosecution in support of the charge framed against him and other co-accused in the alleged offence. The learned Special Judge issued notice to Special Public Prosecutor on behalf of the State and the State had disclosed their no objection for granting of pardon to the Page 5 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 accused No.1 Mr. I.B.Vyas. The applicant herein, who is accused No.2 in the alleged offence opposed the application and filed his written objections inter alia stating that, the confessional statement made by the accused No.1 Mr. Vyas is nothing, but the outcome of collusion of the accused with the State of Gujarat. It was further stated that, the Special Court has no jurisdiction to grant pardon, invoking the provision of Section 307 read with Section 306 of the Code as it is prerogative of the State Government under Section 64 of the NDPS Act to grant immunity.
6. The Special Judge after hearing the parties passed the impugned order allowing the application and tender pardon conditionally to respondent No.2 Mr. I.B.Vyas.
7. Heard Mr. Saurin Shah, learned counsel for the applicant, Mr.Mitesh Amin, learned Public prosecutor assisted by Mrs. Krina Calla, learned APP for the respondent - State and Mr. Bhadrish Raju, learned counsel for respondent - Mr. I.B.Vyas.
8. Mr. Saurin Shah, learned counsel for the applicant submitted that, the impugned order is arbitrary, bad and unwarranted in law and therefore, the same is required to be quashed and set aside; that the learned Special Court failed to appreciate the fact that the confessional statement is nothing, but completely the outcome of collusion of accused with the State of Gujarat and the theory propounded by him is on the same line of footing which the prosecution has put forward by way of Page 6 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 chargesheet against the present applicant. In this context, the learned counsel drew attention of this Court to the fact that, the application at Exh:67 was tendered before the Court when the accused was on temporary bail for medical ground, granted by this Court vide order dated 23.09.2019 passed in CMA No.15390/2019. It is his submission that, thereafter temporary bail granted earlier was extended from time to time i.e. on 03.10.2019, 14.10.2019, 17.10.2019, 18.10.2019, 29.11.2019, 06.01.2020, 24.01.2020, 06.02.2020 and 26.02.2020. In this background facts, it was submitted that, the State has at no point of time opposed the temporary bail which shows that the State has been hand in gloves with the accused. Thus, it is emphatically submitted that, the learned Special Judge ought to have considered that, the so-called statement is not voluntarily confession, but it has been made on inducement of allowing the accused No.1 to remain on temporary bail on his health ground and therefore, the impugned order requires to be quashed.
9. The learned counsel for the applicant would further submit that, the confessional statement is not an honest confession bringing out the veracity of truth, but a confession to fill up a lacuna in the prosecution case and therefore, impugned order by the Special Judge granting pardon suffers from non-application of mind as the learned Judge failed to record satisfactory reason for granting pardon.
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10. Heavy reliance has been placed on the case of CBI Vs. Ashok Kumar Agrawal & Anr. [(2013) 15 SCC 222] , to submit that, before the Special Judge acts to tender pardon, he must know the nature of complicity of the accused and degree of his culpability in relation to the offence and in relation to the co-accused and order should not pass mechanically and must ensure that, the pardon is in the interest of justice as it is the judicial act and court must compare the culpability of the person seeking pardon qua other accused. In this context, it is his submission that, the accused Mr. I.B.Vyas was in- charge of the investigation from very inception of the case and had raided the hotel, seized the alleged opium, lodged the FIR, arrested the accused, recorded the statement of the witnesses, conducted TI parade and finally submitted a report under Section 169 of the Code. Thus, being a principal offender, the role of the accused No.1 Mr. Vyas is grave than the applicant, which facts having not been properly appreciated by the Special Judge while granting pardon.
11. Learned counsel Mr. Saurin Shah has raised the legal issue that, the Special Judge has no jurisdiction to exercise his power under Section 307 read with Section 306 of the Code. In this context, it is his submission that, considering the charges for the offence under the NDPS Act, the State Government is empowered to tender immunity from prosecution and the NDPS Act being a Special Act, will prevail over the Code of Criminal Procedure. The Government has not exercised its power under Section 64 of the NDPS Act. Thus, the application Page 8 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 made under Section 307 read with Section 306 of the Code is not tenable in the eye of law and the Special Judge has no jurisdiction to exercise the power to grant pardon under Section 307 of the Code. Under the circumstances, the impugned order is not sustainable.
12. In view of the aforesaid contentions, learned counsel Mr. Saurin Shah would submit that, the revision application deserves to be allowed.
13. On other hand, Mr. Mitesh Amin, learned Public Prosecutor would contend that, the impugned order is legal, just and proper and the learned Special Judge has followed the statutory procedure as laid down under Section 306 of the Code and therefore, it does not warrant any interference of this Court. Mr. Amin would further submit that, the co-accused i.e. the applicant 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 and it is the prosecution to take a decision as to whether prosecution agree to the tender of pardon.
14. Reliance was placed on the case of CBI Vs. N.K.Amin & Ors. [CRMA No.10311/2010] , wherein a coordinate Bench of this Court vide order dated 07.10.2020 held that, the objection of other co-accused is not required to be considered nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon after hearing a Page 9 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 person applies for pardon and the prosecution or investigating machinery, but all the co-accused will have a right to cross-examine to the accomplish witness if his statement is recorded before the learned Magistrate. Therefore, it is his submission that, granting pardon and making an accused approver is a matter of between the court and the applicant accused and therefore, the applicant being a co-accused has no right to challenge the impugned order. It was his further submission that, the learned Special Court has assigned sufficient reasons for granting pardon and has considered the fact that the statement has been given voluntarily and also noted the allegations against the applicant and applied his mind properly to the chargesheet case papers and also made proper interpretation of Section 307 read with Section 306 of the Code and Section 64 of the NDPS Act and finally came to a conclusion that tender of pardon will be in the interest of successful prosecution of other offenders.
15. Lastly, Mr. Amin would submit that, the present proceedings filed by the applicant is nothing, but a delay tactics on his part to delay the trial. He drew the attention of this Court towards various applications submitted by the applicant before the Special Court and litigations filed before this Court to submit that, with an oblique motive and to delay the trial, the applicant has abused the process of law.
16. Mr. Bhadrish Raju, learned counsel for respondent No.2 Mr. I.B.Vyas, reiterating the facts of the affidavit Page 10 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 filed by accused No.2, would submit that, his statement being made without any coercion, threat or inducement of any kind and has disclosed true affairs of the alleged crime and therefore, his statement is absolutely voluntary and the allegation alleged is false and malicious having been alleged to threaten the accused.
17. In the aforesaid backdrop, it is to be seen as to whether the impugned order suffers from any vice of illegality as contended by the learned counsel appearing for the applicant - accused No.2 ?
18. Before adverting to the issue raised by the learned counsel for the respective parties, it is relevant to refer the legal provision and the principle on the issue settled by the Apex Court.
19. Section 306 of the Cr.P.C., relates to the tender of pardon to an accomplish and the procedure, whereas, Section 307 authorized the court concerned to grant pardon any time after commitment of a case, but before judgment is passed on the same condition to such person as provided under Section 306 of the Code.
"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 Page 11 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 and true dis- closure of 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 thereof.
(2) This section applies to-
(a)any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952 );
(b)any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub- section (1) shall record-
(a)his reasons for so doing;
(b)whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub- section (1)-
(a)shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b)shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has, accepted a tender of pardon made under sub- section (1) and has been examined under sub- section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,-
(a)commit it for trial-
(i)to the Court of Session if the, offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;Page 12 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021
R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021
(ii)to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952 ), if the offence is triable exclusively by that Court;
(b)in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.""
Section 307 reads as under:
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.
20. Section 306 of the Code enables that the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation and an inquiry into or the trial of, the offence, the tender of pardon to a person with a view to obtaining the evidence of that person suppose to have been directly or indirectly concern in the offence. Section 307 of the Code, empowers the court after committal of a case to it, to tender pardon with a view to obtaining at the trial the evidence of that person suppose to have been directly or indirectly concern in the offence.
21. It is settled law that the primary object under the aforesaid provisions is that the offender of the heinous and grave offences do not go unpunished. In the case of State of Maharashtra Vs. Abu Salem (2010) 10 SCC 179 , the Apex Court held that "the salutary principle of tendering a pardon to an accomplish is to unravel the Page 13 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 truth in the grave offence so that guilt of the accused persons concerned in commission of crime could be brought home."
22. In the case of CBI Vs. Ashokkumar Agrawal (2013) 15 SCC 222, while dealing with the granting of pardon under Section 306 of the Code and the right of the co- accused to challenge such order and referring to the decisions of Lt. Commander Pascal Vs. State of Maharashtra AIR 1968 594 SC, the Apex Court settled the law with respect to granting pardon and what criteria should be followed by the Court. The relevant paras- 17, 18, 19, 20, 22, 23, 24, 27, 28, 32, 33, 40 are extracted as under:
"17. In Lt. Commander Pascal Fernandes (supra), Hidayatullah J. (as His Lordship then was) speaking for a three-Judge Bench dealt with the issue involved herein in great detail and explained the scope of the provisions of Section 337 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'old Code') observing as under:
"14. The next question is whether the Special Judge acted with due propriety in his jurisdiction. Here the interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider. Before the Special Judge acts to tender pardon, he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused. What is meant by public policy is illustrated, by a case from Dublin Commission Court (Reg v. Robert Dunne, 5 Cox Cr.Page 14 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021
R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 cases 507) in which Torrens, J., on behalf of himself and Perrin, J., observed as follows:
"From what I can see of this case, this witness Bryan, who has been admitted as an approver by the Crown is much the more criminal of the two on his own showing... I regret that this witness, Bryan, has been admitted as evidence for the Crown and thus escaped being placed upon his trial. It is the duty of Magistrates to be very cautious as to whom they admit to give evidence as approvers, and they should carefully inquire to what extent the approver is mixed up with the transaction, and if he be an accomplice, into the extent of his guilt...."
(Emphasis added) This Court further observed :
"15. .... 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 prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind 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."
18. In Laxmipat Choraria & Ors. v. State of Maharashtra, AIR 1968 SC 938, this Court while dealing with a similar issue under the provisions of the old Code, after placing reliance on the judgment in Charlotte Winsor v. Queen, (1866) 1 QB 308 observed as under:
"14. ..... To keep the sword hanging over the head of an accomplice and to examine him as a witness Page 15 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 is to encourage perjury. Perhaps it will be possible to enlarge Section 337 to take in certain special laws where accomplice testimony will always be useful and witness will come forward because of the conditional pardon offered to them....."
(Emphasis added)
19. In Saravanabhavan and Govindaswamy v. State of Madras, AIR 1966 SC 1273, Justice Hidayatullah, speaking for the majority of the Constitution Bench observed that the antecedents of the approver do not really make him "either a better or worse witness" but his evidence can only be accepted on its own merit and with sufficient corroboration.
20. In Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10, this Court considered a case where an accomplice who had not been put on trial was examined as a witness who deposed in the court after taking oath; and after considering earlier judgments particularly Rameshwar v. State of Rajasthan, Sarwan Singh Rattan Singh v. State of Punjab, Suresh Chandra Bahri v. State of Bihar, K. Hashim v. State of Tamil Nadu, and Chandran v. State of Kerala, held that "39. An accomplice is a competent witness and that conviction can rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime.
The deposition of an accomplice in a crime who had not been made an accused and put to trial can be relied upon, however, his evidence is required to be considered with care and caution. Such a person is a competent witness as he deposes in the court after taking oath and Page 16 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 there is no prohibition in law not to act upon his deposition without corroboration.
22. In Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599, this court considered the judgment in Bhuboni Sahu v. R. wherein it has been observed as under:
".....The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver. This tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have noted on innumerable occasions, and it is very difficult for the court to guard against the danger."
23. This Court placing reliance on the above, held as under:
"7. The combined effect of Ss. 133 and 114, illustration (b) may be stated as follows: According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."
24. In Jasbir Singh (supra) this Court dealt with the issue observing that the court while considering the application for tendering pardon is not to consider the possible Page 17 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 weight of the approver's evidence even before it was given. The evidence of an approver does not differ from the evidence of any other witness except that the evidence of the approver is looked upon with more caution. The suspicion of such evidence may be removed and if the evidence of an approver is found to be trustworthy and acceptable, then the evidence might will be decisive in securing a conviction. Thus, the court while exercising such power should not assess the probative value of the possible evidence of the person seeking permission to become an approver in anticipation and wholly in the abstract.
27. The aforesaid view stands fortified by the judgment of this Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashta, wherein it has been held that the order of pardon cannot be passed mechanically and the court has to apply its mind while exercising such powers. In Bawa Faquir Singh v. Emperor, AIR 1938 PC 266, while dealing with the issue of grant of pardon under the provisions of the old Code, it was held that tendering pardon under the provisions of Section 337 of the old Code is "a judicial act and under the special precautions, rules and consequences which the statute sets out".
28. Section 306 Cr.P.C. is verbatim to Section 337 of the old Code. There is no change at all with respect to the power to grant pardon. More so, exercise of judicial power in relation to grant of pardon is required so as to remove any suspicion of political consideration or to ensure that the pardon is in the interest of justice (Law Commission of India - 48th Report, July 1972). The Constitution Bench in Saravanabhavan and Govindaswamy (supra) considered the issue of veracity/reliability of the evidence of an approver and not who can be made an approver or what is the role of the court while considering the application for grant of pardon.
32. From the aforesaid discussion on the issue, it is evident that the law laid down by this Court in Lt. Commander Pascal Fernandes (supra) and Laxmipat Choraria (supra) still holds the field. In spite of our repeated query, no case where a different view from the Page 18 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 aforesaid two cases has been taken could be brought to our notice.
33. In view of the above and considering the judgment of the Privy Council in Bawa Faquir Singh (supra), we are of the view that the grant of pardon by a court under Section 306 Cr.P.C. on being asked by the accused and duly supported by the State is a judicial act and while performing the said act, the Magistrate is bound to consider the consequences 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.
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 West Bengal, However, the revisional powers under Section 397 read with Section 401 Cr.P.C. 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 Cr.P.C. 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 recognized 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 Co-operative Housing Society Ltd., Bombay v. State of Maharashtra & Ors., and State of U.P. v. Kailash Nath Agarwal & Ors.).
23. With reference to the relevant provisions as referred to above and the law laid-down by the Apex Court, the following principles can be summarized thus:-
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(i) The law laid down by the Apex Court in case of Lt.
Commander Pascal Fernandez (AIR 1968 594) and Laxmipath Choraria (AIR 1968 SC 98) still holds the field;
(ii) Grant of pardon by the Court under Section 306 of the Cr.P.C. on being asked by the accused and duly supported by the State, is a judicial act and while performing the said Act, the Magistrate is bound to consider the consequences 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 (Bava Fakir Singh Vs. King Emperor (AIR 1938 PC
266);
(iii) The co-accused have no legal right to raise any grievance, particularly in view of the law laid down by the Apex Court in Ranadhirbasu Vs. W.B (2003) SCC 161, however, the revisional powers under Section 397 read with Section 401 of the Cr.P.C can be exercised by the Court, suo-motu, particularly to examine the correctness, legality or propriety of any findings;
(iv) The interests of accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider. Before the Special Judge, acts to tender pardon he must of-course know the nature of the Page 20 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 evidence the person seeking conditional pardon is likely to give, the nature of its complexity and the degree of his culpability in relation to the offence and in relation to the accused. (Lt. Commander Pascal Fernandez Vs. State of Maharashtra (AIR 1968 SC 594).
24. Having heard the learned counsel for the respective parties and on careful perusal of the records, this Court finds that the learned Special Court while allowing the application granting pardon, has taken into consideration the confessional statement and statement made upon the oath, led to his satisfaction that the statement is voluntarily given by the accused Mr. Vyas without any coercion, threat or inducement of any kind. The learned Special Court has also verified that the accused is a party or privy in the commission of offence and also taken into account the consent of the prosecution that the tender of pardon will in the interest of successful prosecution of the other offender and finally, agreed to the tender of pardon. The learned Special Judge has considered Section 64 of the NDPS Act and relying on the case of Jasbir Singh Vs. Vipinkumar Jaggi (2001) 8 SCC 289 , came to the conclusion that there is no conflict between the powers exercised by the Court under Section 307 and by the Government under Section 64 of the NDPS Act and the Court being a original criminal jurisdiction having jurisdiction to deal with the application filed under Section 307 read with Section 306 of the Cr.P.C. The learned Special Judge while allowing the application also deal with the objection filed by the applicant that the confession is Page 21 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 not honest confession but it has been made on inducement of allowing the accused to remain on temporary bail on his health ground.
25. In view of the observations and conclusion of the learned Special Judge, now let us deal with the contentions raised by learned counsel for the applicant.
26. The first contention is that the confession before the Special court is not voluntary but a purchase confession on inducement of allowing him to remain on temporary bail on his health ground. This allegation having been made mainly on the ground that the State has not objected the orders of temporary bail granted by this Court. This Court is of the view that the contention is misconceived and ill-founded, as merely the accused had been extended the benefit of temporary bail by judicial order would not give rise to infer that the confession being made by inducement allowing him to remain on temporary bail. The fact remains that the accused at relevant point of time was suffering from heart disease and coronary bye-pass surgery was undertaken upon him and for which, he had produced all the relevant papers before the Court. This facts have not been denied by the applicant herein. Even otherwise, if accused is in jail, then also, he is entitled to move application under Section 306. Thus, extension of temporary bail, granted by passing judicial order cannot be said that the accused has made the confession on the inducement of allowing him to remain on temporary bail on his health ground. It is Page 22 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 required to be noted that person accepting the tender of pardon shall be detained in custody until the termination of the trial and since then, he is in confinement.
27. The second contention is that the learned Special Judge has no jurisdiction to exercise the power under Section 307 read with Section 306 of the Code as the prosecution is mainly governed by the Special Act namely NDPS Act, 1985 and considering Section 36A of the NDPS Act, which deals with non-obstacle clause regarding applicability of Cr.P.C and therefore, as provided under Section 64 of the NDPS Act, the State Government is empowered to grant immunity from the prosecution and the Special Court has no jurisdiction to exercise its power.
28. This Court is of the considered view that considering the provision i.e. 307 read with 306, there is no specific exclusion or bar for grant of pardon by Special Court. The identical issue came before the Apex Court in the case of Harshad S. Metha Vs. State of Maharashtra, 2001 (8) SCC 257, wherein, the 3 Judges' Bench of the Apex Court had an occasion to consider the provisions of Section 306 and 307 of the Code qua Section 9(2) of the Special Court (Trial of Offences relating to Transactions in Securities) Act, 1992. The Apex Court held that all powers under Section 306 and 307 of the Code to the extent applicable were available to the Special Court under the Act. Reliance can be placed on the case Yakub Abdul Razak Vs. State of Maharashtra, 2013 (13) SCC 1 , wherein, the Apex Court while referring the case of Page 23 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 Harshad S. Metha (Supra), held that the Special Court is a Court of original jurisdiction and has all the powers of such a court under the Code including those of Sections 306 to 308. The relevant para-296, 297, 298, 299, 300, 304 read thus:
"296. After adverting to the above mentioned provisions of the Code and in the absence of any specific exclusion or bar for the application for grant of pardon by Special Courts in the Code, in Harshad S. Mehta [Harshad S. Mehta v. State of Maharashtra, (2001) 8 scc 257: 2001 SCC (Cri) 1447], this Court has concluded (SCC p.269, para21) "21.....but it does not necessarily follow therefrom that the power to tender pardon under Section 306 and 307 has not been conferred on the Special Court".
In para 22, the Court has held as under:
Harshad S. Mehta [Harshad S. Mehta v. State of Maharashtra, (2001) 8 scc 257: 2001 SCC (Cri) 1447] "22. The Special Court may not be a criminal court as postulated by Section 6 of the Code. All the same, it is a criminal court of original jurisdiction. On this count the doubt, if any, stands resolved by the decision of the Constitution Bench of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak. In Antulay case the Constitution Bench said that shorn of all embellishment, the Special Court is a court of original criminal jurisdiction and to make it functionally oriented some powers were conferred by the statute setting it up and except those specifically conferred and specifically denied, it has to function as a court of original criminal Page 24 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 jurisdiction not being hidebound by the terminological status description of Magistrates or a Court of Session. Under the Code, it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied."
297. Posing these questions, the Bench analyzed to see whether power to grant pardon has been specifically denied to the Special Court established under the Act. The contention of the learned senior counsel was that the Act does not postulate commitment of the case to the Special Court and no provision having been inserted in the Act to empower the Special Court to tender pardon, hence, the impugned order granting pardon is without jurisdiction. In para 35, the Court has observed as under:
"35. There cannot be any controversy that there is no express provision in the Act excluding therefrom the applicability of Sections 306 and 307 of the Code. Can it be said to be so, by necessary implication, is what we have to determine."
298. The following conclusions in Harshad S. Mehta [Harshad S. Mehta v. State of Maharashtra, (2001) 8 scc 257: 2001 SCC (Cri) 1447] are also relevant:
"51. The Code has been incorporated in the Act by application of the doctrine of legislation by incorporation. The power to grant pardon has not been denied expressly or by necessary implication. As earlier stated after decision in the case of A.R. Antulay it was not necessary to make specific provision in the Act conferring power on the Special Court to grant pardon at trial or pre-trial stage. The Special Court is a court of original criminal jurisdiction and has all the powers of such a court under the Code, including those of Page 25 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 Sections 306 to 308 of the Code, the same not having been excluded specifically or otherwise.
52. There is no provision in the Act which negates the power of the Special Court to grant pardon. The Special Court has power to grant pardon at any stage of the proceedings. The power under Section 307 cannot be denied merely because no commitment of the case is made to the Special Court. Learned Solicitor-General, in our view, rightly contends that the other statutes are only an external aid to the interpretation and to rely upon the omission of a provision which is contained in another different enactment, it has to be shown that the two Acts are similar which is not the position here. The scheme of the two Acts is substantially different as has been earlier noticed by us. It is also evident from Fernandez case as well".
299. After arriving at such a conclusion, the Bench in Harshad S. Mehta [Harshad S. Mehta v. State of Maharashtra, (2001) 8 scc 257: 2001 SCC (Cri) 1447], in para 55 held as under:
"55. In the present case, we are unable to find either any inconsistency or any provision which may indicate expressly or by necessary implication the exclusion of the provision of the Code empowering grant of pardon." After saying so, the Bench concluded as under:
"62. Our conclusion, therefore, is that the Special Court established under the Act is a court of exclusive jurisdiction. Sections 6 and 7 confer on the court wide powers. It is a court of original criminal jurisdiction and has all the powers of such a court under the Code including those of Sections 306 to 308." The above conclusion fully supports the stand taken Page 26 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 by CBI and the ultimate decision arrived at by the Designated Court.
300. It was argued by learned senior counsel appearing for the CBI that the word 'notwithstanding' appearing in various provisions of TADA shows that the Code would apply to all cases unless specifically provided for in the TADA. He placed reliance on Section 4(2) of the Code which provides as follows:
"4.(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
304. In view of Section 4 of the Code, trial of all offences under the Indian Penal Code or any other laws including TADA have to be investigated, enquired into, tried and dealt with according to the provisions contained in the Code which read as under:
"4.Trial of offences under the Indian Penal Code and other laws. -(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
Section 4(2) of the Code makes it clear that all the offences under any other law shall be investigated, inquired into, tried and dealt with according to the provisions Page 27 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 of the Code but subject to specific clause/reference of the Special Act. It is also clear from Section 5 of the Code that in the absence of specific provisions in any enactment, the provisions of the Code shall govern for the purpose of investigation, enquiry etc"
29. Applying the above principles to the facts of present case, the learned Special Court has not committed any error of law while entertaining the application under Section 306 read with 307 and therefore, contention raised is not acceptable and has no merits.
30. The learned counsel Mr. Saurin Shah, placing reliance in the case of CBI Vs. Ashokkumar and others (Supra), raised the contention that the learned trial Court while granting the pardon did not have considered the culpability of the accused i.e. Mr. Vyas in relation to the offence qua the co-accused and mechanically without considering the interest of the present applicant, passed the order. When the matter is examined from this prospective, this Court is of the considered view that the learned Special Court has examined the allegations made against the applicant and the accused no. 1 Mr. Vyas, and has discussed the issue at length and assigned sufficient reasons in the order. The record indicates that, the present applicant is shown as principal offender in the alleged crime and role of Mr. Vyas - accused no. 1 is of the abettor. It is required to be noted that at relevant point of time, the applicant was District Superintendent of Police of District Banaskantha - Palanpur and the accused No.1 - Mr. Vyas was working as Police Inspector, Local Page 28 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 Crime Branch, Palanpur-Banaskantha. Thus, Mr. Vyas -
accused was subordinate to the applicant and was abide by the instruction / direction issued by the applicant time to time. The learned Special Court has observed this aspect and after due application of mind to the facts and materials on record of the case, exercised his judicial discretion, following the mandatory provision of Section 306 read with Section 307 of the Code.
31. On the issue of maintainability of the revision, the learned Public Prosecutor raised the contention that the applicant has no legal right to raise grievance and challenge the legality and propriety of the order. I do not agree with the contention raised by the learned Public Prosecutor. It is settled that the co-accused have no right to raise any grievance before the Trial Court or Special Court, as it is a matter between the court and the applicant accused. In case of Bava Faqur Singh Vs. King Emperor, AIR 1938 PC 266, it was held that while dealing with the issue of grant of pardon, is a judicial act. Thus, while dealing with the application, the Court is expected to give reasons in support of decision and therefore, I am of the considered vied that the decision of granting or rejecting the pardon can always be subject matter of scrutiny by the higher Court. The Apex Court in case of CBI Vs. Ashokkumar Agrawal, (supra) in para-40 observed that, the revisional power under Section 397 read with Section 401 Cr.P.C. 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 proceedings of the inferior Page 29 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 court. The Apex Court has further observed that, these two Sections in Cr.P.C. do not create any right in favour of the litigant but only empower / enable the High Court to see that justice is done in accordance with recognized principles of criminal jurisprudence. Under the circumstances, this Court hold that the Revision at the instance of the applicant is maintainable.
32. It is the contention of learned Public Prosecutor Mr. Amin that the present proceedings is nothing but abuse and misuse of the process of the Court and it has been filed with a view to delay the trial Court proceedings.
33. In the context of fair trial, learned advocate Mr. Saurin Shah for the applicant would submits that applicant having all the right to take available legal recourses to defend his case. Under the circumstances, it cannot be said that accused / applicant is adopting delay tactics.
34. In the present case, the applicant came to be arrested on 05.09.2018 and chargesheet for the aforesaid offences being submitted on 02.11.2018 by the Investigating Officer. Undisputedly, on 26.12.2018, the applicant had submitted discharge application under Section 227 of the Cr.P.C. and same was rejected by the Special Court vide order dated 23.08.2019. The applicant had challenged the same before this Court by filing Criminal Revision application No 1650 of 2019 and same has been rejected vide order dated 21.05.2020. It further appears that on 17.09.2021 and 25.09.2021, the Page 30 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 applicant had moved an applications below Exh. 58 and 63 under Section 91 of the Cr.P.C. and same were rejected by the Special Court vide order dated 18.03.2021. Thereafter, the applicant had filed an application under Section 216 of the Cr.P.C, to modify / amend the charge at Exh. 139 which came to be rejected by Special Court vide order dated 18.03.2021. The applicant has challenged the orders passed below Exhs. 58, 63 and 139, by way of filing Revision before this Court. The Coordinate Bench of this Court while disposing the revision application against the discharge application filed by the present applicant, observed in para-36 that the applicant is able to frustrate the court of justice by delaying the trial since 1996. This Court has taken into consideration various cases filed against the present applicant and the proceedings initiated by him either before the concerned trial Court or this Court.
35. Thus, from the aforesaid facts, it is evident that the applicant has been adopting dilatory practice on each and every stage of the trial and there is substance in the submission canvassed by the learned Public Prosecutor Mr. Amin that the applicant is adopting dilatory practice to delay the trial proceedings. It is evident that the conduct of the applicant has been noted by the Special Court while allowing the application of the pardon. In these background facts, this court is of the considered view that no party can be permitted to abuse the process of court by indulging into such dilatory and delaying tactics only with a sole intention to delay the trial. This is a classic example of how the provisions of law are Page 31 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021 R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 misused to delay and protract the proceedings and the attempt made by the applicant is nothing but an abuse of process of law.
36. In view of the aforesaid discussions made herein above, in the impugned order, the learned Special Court after appreciation of all the materials on record, legal propositions and taking note of seriousness of the charge, allowed the application Exh. 67 filed under Section 306 read with Section 307 of the Code. This Court does not find any infirmity in the impugned order which calls for interference. It is settled law that while exercising its jurisdiction under Section 397 the revisional court should not act like appellate Court. Therefore, it cannot be said that the order of the Special Court is so perverse or contrary to the law, warranting any interference.
37. In the result, the Revision Application fails and is hereby dismissed. Notice discharged.
(ILESH J. VORA,J) P.S. JOSHI Page 32 of 32 Downloaded on : Sat Aug 07 16:46:53 IST 2021