Jharkhand High Court
Shiv Kumar Patwari vs The Union Of India Through C.B.I. --- --- ... on 8 March, 2019
Equivalent citations: AIRONLINE 2019 JHA 562, 2019 (3) AJR 528
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. M.P. No. 175 of 2018
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Shiv Kumar Patwari --- --- --- Petitioner
Versus
The Union of India through C.B.I. --- --- Opp. Party
With
Cr. M.P. No. 177 of 2018
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Shailesh Prasad Singh --- --- --- Petitioner
Versus
The Union of India through C.B.I. --- --- Opp. Party
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Coram: Hon'ble Mr. Justice Aparesh Kumar Singh
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For the Petitioners: Mr. Vishnu Kumar Sharma, Advocate [in both cases] For the O.P.-CBI : Mr. Rajiv Sinha, ASGI Rajiv Nandan Prasad, Sushant Kumar Sinha, Advocates Amicus Curiae: M/s Ashutosh Anand, Nipun Bakshi
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05/08/03/2019 Heard learned counsel for the petitioners, learned CBI and learned Amicus Curie. Both these petitions are being heard together as the common order dated 23rd December, 2017 passed in R.C. Case No. 64(A)/96 by the learned Court of A.J.C.-I-cum-Special Judge-VII, CBI (AHD Scam), Ranchi, whereby both these petitioners were asked to show cause as to why pardon granted to them be not withdrawn was under challenge. These two petitioners submitted their show-cause before the learned Court during pendency of these petitions vide Annexure-5 to the supplementary affidavits enclosed to the respective petitions objecting to the withdrawal of pardon granted under Section 306 Cr.P.C. Upon consideration of their show cause, learned Court has by the common impugned order dated 31 st May, 2018 assailed through I.A. No. 4947 of 2018 and 4949 of 2018 respectively revoked the pardon granted to these two petitioners. Thus, both the petitioners, who claim to stand on similar footing have challenged the impugned orders cancelling the pardon granted to them earlier by learned CBI Court upon common factual and legal grounds briefly referred to hereinafter.
2. Petitioner Shiv Kumar Patwari (hereinafter referred to as 'Shiv' in short) and petitioner Shailesh Prasad Singh (hereinafter referred to as 'Shailesh' in short) were charge-sheeted as accused persons by the CBI upon conclusion of investigation in the instant R.C Case No. 64(A)/96. Petitioner Shiv Kumar Patwari belonged to the category of Transporter while petitioner 2 Shailesh Prasad Singh belonged to the category of supplier. R.C. Case No. 64(A)/96 related to fraudulent withdrawal under AHD Department from Deoghar Treasury during the period 1991-92 to 1993-94. As per charge- sheet, fraudulent withdrawal to the tune of Rs. 48,210/- were alleged against the petitioner, Shiv Kumar Patwari while Rs. 98,635/- as against the petitioner, Shailesh Prasad Singh is also evident from the impugned order itself. Petitioner, Shiv volunteered to become an approver and made a disclosure statement under Section 306 Cr.P.C on 3rd May, 2005 before learned CBI Court. Learned CBI Court vide order dated 4th May, 2005 granted pardon to this petitioner upon being satisfied that his statement revealed facts showing his involvement in the case being privy to the offences covered in this case and had knowledge of entire circumstances relating to the offences and certain persons concerned in commission thereof. He was granted pardon on the condition that he would make true and full disclosure of the whole circumstances within his knowledge relating to the offence and every other person concerned with whether as a principal or abettor in the circumstances thereof in terms of Section 5(2) of the Prevention of Corruption Act,1988 and Section 307 Cr.P.C. That he will abide by his statement made in this case and he would support the prosecution case during trial or otherwise whenever he is called upon to support the prosecution case. Petitioner, Shiv thereafter was examined as P.W.-141 in the instant R.C. Case on behalf of CBI and had made full and truthful disclosure of the complete material circumstances relating to the offence and the persons involved therein.
3. Petitioner, Shailesh also volunteered to become an approver and made a statement in Court on oath disclosing facts and circumstances of the case leading to the commission of the offence and his involvement in the matter as well as the involvement of other accused persons. The prosecution also filed petitions, in which prayer was made to make the accused Shailesh as an approver. The prosecution did not object with respect to his prayer. Learned CBI Court considered the statement of this accused and consent of the prosecution and granted pardon to him vide order dated 17 th June, 2003 with a condition that it will remain effective only when he supports the prosecution case in all stages of trial and whenever he is called upon to support the prosecution case. Both the orders are enclosed as Annexure-2 to the respective petitions. This petitioner was examined as P.W.-149 in the instant R.C. Case No. 64(A)/96 on behalf of CBI and had supported the case 3 of the prosecution by making true and full disclosure of the material circumstances relating to the offence and the persons involved in the crime. Learned CBI Court upon conclusion of the trial delivered the final judgment in the instant R.C.Case on 23rd December, 2017. Learned Trial Court has at various paragraphs in the impugned judgment such as paragraphs- 69, 70, 72, 74, 77, 80, 81, 84, 88, 90, 91, 92, 93, 94, 101, 102,106,126 and 146 relied upon the statement of these approver witnesses and also observed that they have fully supported the case of the prosecution. CBI in its counter affidavit in both petitions have made categorical statements to that effect at paragraphs 14 and 15 of the respective affidavits.
4. It is brought to the court's notice that the same Court of learned Special Judge-VII CBI (AHD Scam), Ranchi had taken cognizance against the petitioner Shiv under Section 319 Cr.P.C in R.C. Case No. 38 (A)/96 without any basis though this petitioner had appeared as P.W.-174 in that case and made complete and truthful disclosure of all the material circumstances relating to the offence and the persons involved in support of the C.B.I. This Court has vide judgment dated 1st February, 2019 passed in Cr.M.P. No. 915 of 2018 been pleased to quash the order of arraignment upon consideration of all the factual and legal grounds in the light of principles laid down by the Apex Court in the Constitution Bench Judgment of Hardeep Singh Vrs. State of Punjab reported in (2014) 3 SCC 92 and other later judgments.
After delivery of the final judgment learned Court on the same date 23rd December, 2017 proceeded to arraign certain persons as an accused under Section 319 Cr.P.C and at the same time issued show cause notice upon these two petitioners asking them to show cause as to why the pardon granted to them be not revoked as the learned Court observed that CBI/I.O distributed rewards to those accused, who otherwise obliged them.
5. It is pointed out by learned counsel for the petitioners that no application was made on behalf of C.B.I or any certification given by learned Special Public Prosecutor for C.B.I in terms of Section 308 Cr.P.C to the effect that these two petitioners had violated the conditions of pardon and not made complete and truthful disclosure of all the materials circumstances relating to the offence and the persons involved, in course of their deposition before learned CBI Court. These petitioners approached this Court upon issuance of the show cause notices. However, this Court while granting time to the CBI for filing counter affidavit observed that petitioners should submit 4 their explanations before learned CBI Court in response to the show cause notice. These two petitioners thereafter submitted their reply which is at Annexure-5 to the supplementary affidavit enclosed to the respective petitions. Petitioners took the plea that: (i) no condition of pardon has been violated by them (ii) no certification in terms of Section 308 Cr.P.C was made by learned Special Public Prosecutor that these petitioners have willfully concealed anything essential or had given false evidence and not complied with the condition of pardon, which is a mandatory pre-requisite for revocation of pardon. They relied upon the judgment of the Apex Court in the case of State (Delhi Administration) Vs. Jagjit Singh reported in AIR 1989 SC 598; 1989 Supp(2)SCC770 in support of their contention. It is contended that learned CBI Court, however, by impugned order dated 31st May, 2018 revoked the pardon granted to them. It observed that the accused persons were equally liable to commit fraud in conspiracy with other co- accused and without any reason they were granted pardon and were enjoying the ill-gotten money. They never tendered to deposit such money received by them in the Treasury. Therefore, it was necessary to call them to face the trial on the basis of evidence on record. Cognizance had already been taken against above accused by the previous Court, hence, both accused were ordered to come and face the trial according to law without prejudice of the fact that they were granted pardon.
6. On the basis of this factual delineation, learned counsel for the petitioners have assailed the impugned order on the ground that it is in teeth of the provisions of Sections 306 to 308 Cr.P.C. The prosecuting agency or the learned Special Public Prosecutor has not given any certificate in terms of Section 308 Cr.P.C that these petitioners were concealing anything or have not made complete and truthful disclosures of all the materials circumstances relating to the offence and the persons involved in the case. Learned Court has also not recorded any finding that these petitioners had failed to make complete and truthful disclosures of all such material circumstances relating to this offence and the persons involved. On the contrary, learned Court relied upon the evidence of these approver witnesses and also observed that they have fully supported the case of the prosecution and accordingly convicted several persons by the final judgment dated 23rd December, 2017. The approach of learned Court was completely unknown to law and reflected contradictory findings of the same Court on the same issue.
5The impugned order, therefore, deserves to be quashed, otherwise it may entail grave miscarriage of justice and would amount to an abuse of the process of the Court.
7. Learned counsel for CBI has filed counter affidavit in both the petitions. It is their consistent stand that these two petitioners, who were charge-sheeted as accused in the instant R.C. Case were granted pardon by the learned CBI Court after consent and approval of the competent authority of the CBI. They have been examined as prosecution witnesses and have supported the case of the prosecution as P.W.-141 and P.W-149. A total of 160 prosecution witnesses were examined in this case and on conclusion of trial, learned Court delivered final order and judgment on 23 rd December, 2017 convicting 16 accused persons and acquitting 6 accused persons.
Learned counsel for the CBI has made particular reference to the statement made at paragraphs 14 and 15 of the counter affidavit, which refers to the paragraphs of the final judgment dated 23 rd December, 2017 rendered by learned CBI Court, wherein learned Court had not only relied upon the statement of these approver witnesses for convicting the accused persons but also recording findings for acquittal of others such accused persons. Learned counsel for the CBI submits that at no stage CBI has felt that these two petitioners had violated the condition of pardon and failed to make complete and truthful disclosures of all the materials circumstances relating to the offence and the persons involved in the offence. Learned Court has also not recorded any finding that these persons had failed to make complete and truthful disclosures in such manner as required under the condition of pardon. It is also pointed out that no such application was moved by the prosecution/C.B.I for cancellation of pardon of these petitioners. The case of the prosecution was largely dependent upon and supported by the testimony of these approver witnesses and learned Trial Court has also recorded its findings on conviction/acquittal in the final judgment based upon their statements.
8. Learned Amicus Curiae has referred to the legal principles involved in respect of grant of pardon and the required conditions prescribed under Section 308 Cr.P.C for its revocation.
9. Considered the submission of learned counsel for the petitioner, C.B.I and learned Amicus Curiae.
The Apex Court in the case of State of Maharashtra Vs. Abu Salem Abdul Kayyum Ansari and others reported in (2010)10 SCC 179 has 6 dealt with the salutatory principles of tendering a pardon to an accomplice in terms of Section 306 Cr.P.C. It has been laid down that tendering a pardon to an accomplice is meant to unravel the truth in a grave offence so that guilt of other accused persons concerned in commission of crime could be brought home. The object of Section 306 is to allow pardon in cases where heinous offences 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. Section 306 Cr.P.C empowers the Magistrate or the learned Trial Court to tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. The Magistrate of the 1st Class is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime. Section 307 vests the Court to which the commitment is made, with power to tender a pardon to an accomplice. The expression, " on the same condition" occurring in Section 307, refers to the condition indicated in sub-section (1) of Section 306, namely, on the accused making a full and true disclosure 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.
An Accomplice who has been granted pardon under Section 306 or 307 Cr.P.C gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 Cr.P.C to that effect, the protection given to him is lifted. (See paragraphs 15 to 17; Abu Salem Abdul Kayyum Ansari (supra). It is apposite to quote the provisions relating to pardon and its revocation as also dealt with at paragraphs 12 to 14 of the same judgment as prescribed under Sections 306, 307 and 308 Cr.P.C. hereunder:
712. Section 306 CrPC makes a provision for tender of pardon to accomplice. It reads as follows:
"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 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;
(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."
13. Section 307 CrPC provides that:
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 8 have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person."
14. Section 308 provides for the trial of the approver who has accepted tender of pardon but fails to comply with the condition of pardon. The said provision reads as under:
"308. Trial of person not complying with conditions of pardon.--(1) Where, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:
Provided that such person shall not be tried jointly with any of the other accused:
Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in Section 195 or Section 340 shall apply to that offence. (2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under Section 164 or by a court under sub-section (4) of Section 306 may be given in evidence against him at such trial.
(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made; in which case it shall be for the prosecution to prove that the condition has not been complied with.
(4) At such trial, the court shall--
(a) if it is a Court of Session, before the charge is read out and explained to the accused;
(b) if it is the court of a Magistrate, before the evidence of the witnesses for the prosecution is taken; ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made.
(5) If the accused does so plead, the court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall, notwithstanding anything contained in this Code, pass judgment of acquittal."
10. Reliance is also placed on the opinion of the Apex Court in the case of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal and another reported in (2013) 15 SCC 222, paragraphs 17, 32, 33 and 35. The Apex Court in the case of Ashok Kumar Aggarwal (supra) at paragraph 35 has also relied upon the ratio rendered in the case of Jagjit Singh(supra) quoted as under:
" 35. Once the immunity extends to the accused and the accused is made an approver, he stands discharged whereupon he ceases to be an accused and would be 9 examined only as a witness unless the said privilege is revoked on violation of the condition of disclosing complete truth. [See State (Delhi Admn.) v. Jagjit Singh and Jasbir Singh.]"
On the aforesaid legal position delineated by the Apex Court when the case of these petitioners is examined, it is apparent that these two accused persons were granted pardon after acceptance of their disclosures statement made under Section 306 Cr.P.C by learned CBI Court vide its order dated 4 th May, 2005 and 17th June, 2003 respectively in the individual cases on being satisfied that they had made complete and truthful disclosures of all the material circumstances relating to the offence and the persons involved. Learned Court granting pardon had also imposed a condition that they would support the case of the prosecution and make such full and truthful disclosure of the material circumstances relating to the offence and the persons involved during trial and at any time on being called upon to do so. At no stage of the trial, the CBI or learned Special Public Prosecutor, CBI has moved an application for revocation of their pardon nor the Special Public Prosecutor, CBI has certified in terms of Section 308 Cr.P.C that these persons had concealed anything or failed to make truthful and complete disclosures of all the material circumstances relating to the case and the persons involved while deposing before the CBI Court as prosecution witnesses. Certification by the Public Prosecutor .has been held to be a pre-requisite mandatory condition as per the ratio rendered by the Apex Court in the case of Jagjit Singh(supra). On the other hand, learned trial court has itself recorded findings in the final judgment passed on 23 rd December, 2017 to the effect that these approver witnesses have fully supported the case of the prosecution. At no stage, learned CBI Court has rendered a finding to the contrary. In fact, even in the impugned order dated 31 st May, 2018, learned CBI Court has not recorded a finding that these petitioners were found violating the conditions of pardon and had failed to make complete and truthful disclosure of all the material circumstances relating to the offence and the persons involved while deposing as prosecution witnesses in support of the CBI. The only observation which the learned Court has made while passing the impugned order is to the effect that these persons were equally liable to commit fraud in conspiracy with other co-accused persons and were enjoying the ill-gotten money but without any reason they were granted pardon. It is apposite to rely upon the observations of Apex Court in the case of Ashok Kumar Aggrawal (supra) at para 35 quoted above. It has been held 10 therein that once the immunity extends to the accused and the accused is made an approver, he stands discharged whereupon he ceases to be an accused and would be examined only as a witness unless the said privilege is revoked on violation of the condition of disclosing complete truth. Learned CBI Court appears to have completely misdirected itself while passing the impugned order revoking the pardon granted to the petitioners. None of the ingredients necessary for exercise of the powers under Section 308 Cr.P.C stood fulfilled or satisfied for the learned Court to revoke the pardon granted to these petitioners. As a matter of fact, learned Court by making such observation placed itself in a piquant and unenviable position as it contradicted its own findings recorded in the final judgment dated 23 rd December, 2017 passed in the instant R.C. Case No. 64(A)/96, where it had relied upon the testimony of these approver witnesses and recorded conviction against several accused persons.
11. In the light of the aforesaid facts and circumstances, the detailed discussions and the reasons recorded hereinabove, this Court is of the opinion that learned CBI Court travelled beyond the contours of the power conferred under Criminal Procedure Code and thereby committed serious error of law and on facts. If the order impugned is not set aside, it would entail grave miscarriage of justice and would also amount to an abuse of process of the Court. As such, the impugned order dated 31 st May, 2018 as against these petitioners is quashed. Petitions are allowed.
(Aparesh Kumar Singh, J) jk/