Gujarat High Court
Dollyben Kantilal Patel vs State Of on 17 April, 2013
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
DOLLYBEN KANTILAL PATEL....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s) R/SCR.A/777/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 777 of 2013 ================================================================ DOLLYBEN KANTILAL PATEL....Applicant Versus STATE OF GUJARAT....Respondent ================================================================ Appearance: MR N.D. NANAVATI, SR. ADVOCATE WITH MR. JAL SOLI UNWALA, ADVOCATE for the Applicant. MS TRUSHA K PATEL, ADVOCATE for the Respondent No. 1 MS. ARCHANA C. RAVAL, LD. APP for the Respondent No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 17/04/2013 18/04/2013 & 22/4/2013 ORAL ORDER
Leave to amend prayer clause for mentioning correct Criminal Case number and arraigning the original accused no.2 to 5 as respondents in this petition. Cause title shall stand amended accordingly.
The petitioner accused in Criminal Case No. 556/2012 in the Court of Learned Chief Metropolitan Magistrate, Ahmedabad ( Ld. CJM for short)in respect of the offences punishable under section 406, 409, 420, 465, 467, 468, 471, 477A and 120-B of Indian Penal Code, has approached this Court invoking Article 226 of the Constitution of India as well as provisions of Section 482 Cr.P.C., with following prayers:-
(a) To quash and set aside the impugned order dated 4/3/2013 Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 506 of 2012, below Exhibit Nos. 8,9, 10 and 11 at Annexure-A;
(b) Pending admission, hearing and final disposal of this petition be pleased to impugned order dated 4/3/2013 Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 506 of 2012, below Exhibit Nos. 8,9, 10 and 11 at Annexure-A ;and stay the further proceedings of Criminal Case No. 506 of 2012 pending before he learned Chief Metropolitan Magistrate Court,Ahmedabad;
To grant any other appropriate and just relief/s Thus what is assailed in this petition is an order dated 4/3/2013 passed by Ld. CJM, Ahmedabad in Criminal Case No. 556/2012 below Exhibit Nos. 8, 9, 10 and 11 ordering those co-accused to be treated as Approver in light of their specific application to be treated as such and granting of pardon.
2. The facts in brief as could be culled out from memo of the petition deserve to be set out in order to appreciate the rival contentions of learned counsels.
3. The complaint came to be lodged being C.R. No. I-5/2012 before Gandhinagar Police Station against the present petitioner and other accused for the offence punishable under section 406, 409, 420, 465, 467, 468, 471, 477A and 120-B of Indian Penal Code. The petitioner came to be arrested in connection there with and was granted regular bail by this Court. Out of remaining +accused one was granted anticipatory bail and others came to be arrested and were granted regular bail on 6/2/2013. The accused no.2 , 3, 4 & 5 moved separate applications to the concerned trial Court along with their affidavits for offering themselves as Approver and sought pardon under provision of section 306 Cr.P.C. and submitted that the affidavits accompanying their applications be treated as their confessional statement under section 164 Cr.P.C. The present petitioner felt aggrieved and submitted an application on 18/2/2013 for an opportunity of being heard. The trial Court without paying heed to the application of the petitioner accepted the application of the original co-accused nos. 2 to 5 and passed an order on 4/3/2013 treating the applicants therein original accused no.2 to 5 to be approver. This order dated 4/3/2013 is subject matter of challenge in this petition moved by the aggrieved co-accused petitioner invoking Article 226 of the Constitution of India read with section 482 of Criminal Procedure Code.
4. Learned counsel appearing for the petitioner invited this Court s attention to the provision of section 164, the application exhibit nos. 8, 9, 10 & 11 and section 306 of Cr.P.C., and contended that the collective affidavits would indicate that the order impugned in this petition is passed without following mandatory provision of law and, therefore it deserved to be quashed and set aside.
5. Learned counsel appearing for the petitioner contended that the petition is preferred under Article 226 of the Constitution as well as under section 482 Cr.P.C., to bring to the notice of the Court the patent illegality and irregularity is found in the order impugned and the order impugned is prejudicing the present petitioner, the present petitioner has locus to bring this application in the present form.
6. Learned counsel relying upon decision of the Supreme Court in case of State of U.P. Vs. Kailash Nath Agarwal and Others, reported in AIR 1973 SC 2210, contended that the co-accused s right to maintain challenge against the order granting pardon is well acknowledged and recognized by the Court and counsel for the petitioner has placed heavy reliance upon the concluding paragraphs in the concluding paragraph of judgment to indicate clearly that the revision against the order of granting pardon and treating the co-accused as approval was held to be maintainable on the part of the co-accused. Therefore this petition is absolutely maintainable in law.
7. Learned counsel appearing for the petitioner thereafter invited this Court s attention to the decision of the Division Bench in case of Central Bureau of Investigation Vs. N.K. Amin and others,reported in 2010 (3) G.L.H. 727, and submitted that this Court has extensively referred to the decision of the Apex Court in case of State of U.P. Vs,. Kailash Nath Agrawal (supra) in para-26 and reading of the observations of the Division Bench in light of the observations made by the Apex Court in case of State of U.P. Vs. Kailash Nath Agarwal (supra) it can well be said that the co-accused(s) right to maintain revision is not rejected or rather it is expressly acknowledged at appropriate stage. Relying upon these two decisions a contention was raised that the co-accused has right to bring and maintain this application as the order impugned and grant of pardon on wholly extraneous considerations required to be quashed and set aside.
8. Learned counsel appearing for the petitioner invited this Court s attention to the fact that the trial was in respect of 6 accused, out of which as many as 4 accused chose to put up application for seeking pardon invoking provision of section 306 Cr.P.C. and put up their confessional statement with a prayer to treat the same to be confessional statement under section 164 Cr.P.C., and the Court without following due procedure and mandatory provision granted pardon and treated them to be approver vide impugned order which therefore is required to be quashed and set aside. The power of pardoning co-accused after following the mandate of the statutory provision cannot be disputed but the plain reading of cryptic application with accompanying affidavits cannot partake characteristic of section 164 statements so as to invoke successfully power of pardon which in the present case is granted by learned CJM without even touching requisite condition as mentioned under section 306 Cr.P.C., the order impugned therefore is required to be quashed and set aside.
9. Learned counsel for the petitioner invited this Court s attention to the provision of Section 306 Cr.P.C. and contended that a close reading of section 306 would clearly indicate that the power of pardon is to be exercised only in a manner mentioned there under, namely by complying with provision of section 306 (1) and 306 (4) of Cr.P.C. In the instant case as could be seen from the impugned order Ld. CJM has unfortunately treated the affidavits accompanying the applications exhibit nos. 8, 9, 10 and 11 as confessional statement under section 164 Cr.P.C. and based there upon granted pardon in a case for an offence which cannot be classified to be heinous , the pardon power in such a case was not called for.
10. Learned counsel for the petitioner submitted that so far as the impugned order is concerned, it can be said that it is not mentioned as to whether and as to how confessional statement under section 164 is to be recorded, though it has come out in submission of learned counsel of the informant who was permitted by the Court to represent the complainant and assist the Court for which there was strong objection taken.
11. Learned counsel for the petitioner further contended that plain reading of the order impugned do not indicate as to what conditions are attached for granting pardon. In other words the entire order is silent qua the conditions for giving pardon which renders the order contrary to the provision of law and therefore the same is required to be quashed and set aside. The counsel for the petitioner invited this Court s attention to the decision of the Apex Court in case of Bangaru Laxman Vs. State (Through CBI) And Another, reported in (2012) 1 SCC pg. 500 and contended that the power of pardon is for preventing failure of justice and therefore the Magistrate while granting pardon has to record his satisfaction qua the co-accused making correct statement and indicating honestly all the instances leading to commission of offence. In the Apex Court decision cited herein above in case of Bangaru Laxman (supra) learned counsel placed reliance upon observations of paragraph no. 41 to 43 in support of his aforesaid submission, which reads thus:-
41. It has already been held by this Court that the Special Judge is fully vested with the powers of remand. The power of granting remand is a very wide power as compared to the power of granting pardon. Since this Court has already held that the Special Court is clothed with the magisterial power of remand, thus in the absence of a contrary provision, this Court cannot hold that power to grant pardon at the stage of investigation can be denied to the Special Court.
In view of the discussion made above, this Court is of the opinion that the power of granting pardon, prior to the filing of the charge-sheet, is within the domain of judicial discretion of the Special Judge before whom such a prayer is made, as in the instant case by the prosecution.
Any other conclusion would be detrimental to the administration of justice, in as much as the power to grant pardon is contemplated in situations where a serious offence is alleged to have been committed by several persons and with the aid of the evidence of the person, who had been granted pardon, the offence committed may be proved. The basis of exercise of this power is not to judge the extent of culpability of the persons to whom the pardon is tendered. The main purpose is to prevent failure of justice by allowing the offender to escape from a lack of evidence.
It was further submitted on behalf of the petitioner that plain reading of the application as well as the accompanying affidavits of the co-accused do not indicate anywhere that those facts were true, correct and wholesome narration of facts indicating methodology of commission of crime so as to inspire confidence qua bonafide in making confessional statement under section 164 Cr.P.C.
12. The counsel for the petitioner laid heavy stress upon the nature of crime and offence and submitted that the offence on hand cannot be said to be so heinous as to bring home conviction of the culprit as many as 5 co-accused are required to be given pardon that too on the statement which do not indicate full and complete disclosure of the offence leading to or helping the end of justice for bringing home guilt on the part of the accused. Learned counsel has further contended that main purpose of granting pardon is to prevent failure of justice by allowing the offender goes scot-free on account of lack of evidence. Whereas in the present case it is not the case of the prosecution nor is it the case of the first informant that pardon is required to be granted for that purpose, nor has the Court recorded such finding which would help bring home the guilt and as such straightway granted pardon which would be contrary to the provision of law.
13. Learned counsel for the petitioner relying upon decision of the Supreme Court in case of State of Maharashtra Vs. Abu Salem Abdul Kayyum Ansari, reported in 2010 (3) G.L.H. 717, and contended that granting of pardon carries with a right or rather obligation to impose condition limiting pardon, breach whereof would warrant invocation of section 308. The special emphasis was laid on the observations of the Apex Court in this judgment in para-13 and 16 in support of the said judgment and it was contended that in the instant case impugned order on the face of it does not incorporate any condition which could be said to be in compliance with section 306 Cr.P.C. and for granting pardon.
14. Learned counsel for the petitioner candidly accepted the fact that though there is no whisper about any innuendo or allegation that the affidavits filed on 27/1/2013 were filed with a view weaken case of the present petitioner filed by her alleging against police officers and the complaint of Criminal Case No. 5/ 2012 where from the present case is arising but the timing is very important to be noted in as much as the FIR was not registered hence petitioner was constrained to approach this Court by way by way of Special Criminal Application No. 2206/2012 with a prayer for directing concerned authorities to register the FIR and transfer investigation to CBI and this prayers were not accepted the petitioner had to move Supreme Court by way of Special Leave Petition no. 9256/2012 wherein Supreme Court had issued notice on 10/12/2012 which prompted the accused no.2 to 5 to file these affidavits containing narration with regard to advocate s role also, which is nothing but got up affidavits. At this stage Ms. Patel and learned APP were permitted to submit that no averment of such nature were made and even the petitioner has chosen not to make any of those averments on oath in the petition, as rightly it could not be made as there is no basis whatsoever which could be justified an averment made on oath. There are no averments made on oath the counsel cannot be permitted to make submission without making any basis as it amounts to making the case without laying foundation in form of pleadings.
15. Learned APP further submitted that the contention of petitioner s counsel is not correct that there is no condition attached to the order of pardon. In fact the statement accompanying the application of pardon if found to be incorrect in any manner then the provision of Section 308 could be invoked, that in itself is sufficient safeguard. Moreover as it is submitted the question of pardon being one between the Court and the State and the complainant the co-accused has hardly any say in this behalf.
16. Learned counsel Ms. Trusha Patel appearing for the original informant contended that the petitioner has made incorrect averment in paragraph no. 4 (G) and 4 (H) in as much as the applicant co-accused who were granted pardon were arrested and released on bail and therefore this averment on oath could not have been made. Learned counsel for informant further contended that the provision of Section 306 if read in whole, then, it would be clear that the said provision do not incorporate or envisage any requirement that a statement to be made as statement under section 164 at all, though the practice is that the accused seeking pardon and becoming approver is when coming forward would make a statement on oath before the Magistrate, it would be ordinarily under section 164 of CrPC and hence that is how the said application filed by the co-accused is required to be viewed.
17. Learned counsel for the informant further submitted that there is no clear requirement as sought to be canvassed on behalf of the petitioner that recording of Sec.164 statement is a condition precedent before granting pardon. In fact from certified copy of the rojkam which is produced on record it amply clear that the Court has fixed the matter for recording statement of the approvers on 1/4/2013 and now the matter is adjourned to another date. Therefore the one and only requirement for recording statement is Court s satisfaction qua the genuineness of the proposal of becoming approver and the applicant approver tendering affidavit, and they are so, the same be treated as statement under 164 CrPC appears to be with a view to lend credence to the statement as they are made before public notary and at that stage the accused petitioner do not have any right whatsoever to raise any objection.
18. So far as the locus of the present petitioner is concerned, it was vehemently argued by learned APP as well as learned counsel for original informant that present petitioner has no locus as the decision relied on by them in case of State of U.P. Vs. Kailash Nath Agarwal (supra) cannot be said to be an authority so far as the issue on locus is concerned. The judgment of the Apex Court is to be read on the basis of the facts discussed there under. Had there been a clear question qua locus and clear finding of the court than only it would be treated as binding precedent upon the court on point of locus. In fact the case of State of U.P. Vs. Kailash Nath Agarwal (supra) it was a case where the question as to whether the District Magistrate was entitled to give pardon when the First Class Magistrate had earlier rejected such a request. Thus the entire controversy was in respect of power, jurisdiction and authority of two officers namely First Class Judicial Magistrate as well as District Magistrate and while discussing the same it so happened that Supreme Court discussing the High Court judgment said that the issue qua locus is open and yet said that the revision would lie and therefore over all facts of the case cannot be said to be a case on locus so as to ratio on the point of locus.
19. Learned counsel for the informant further contended that this High Court had an occasion to consider the case and ratio of the case in case of State of U.P. Vs. Kailash Nath Agarwal (supra) when the judgment is reported in 2010 (2) GLH pg. 227 and the Division Bench also did not in unequivocal term acknowledge the locus as could be seen from the observations of the Division Bench which left the case at that stage by saying that the approver and course of question of approver is not a stage which had arisen. Relying upon this observation Ms. Patel contended that this observation amounting to say that co-accused did not have locus to agitate about the pardon as the pardon is exclusively between the Court, the co-accused seeking pardon and the complainant or the State. Co-acused s role not being acknowledged in any manner would amount to show that even Division Bench in case of N.K. Amin (supra) did not acknowledge that there was any locus to challenge the grant of power. Therefore the reference to the judgment of State of U.P. Vs. Kailash Nath Agarwal (supra) in case of Central Bureau of Investigation Vs. N.K. Amin and others (supra) and observations in para-26 sought to be relied upon by counsel for the petitioner is of no avail to the petitioner to justify locus. Learned counsel for the informant has relied upon in support of her submit on para no. 17 to 25, 46 to 52 and 56.
20. Learned counsel for the informant thereafter placed heavy reliance upon observation in case of Ranadhir Basu Vs. State of W.B., reported in (2000) 3 SCC 161 with emphasis upon para-7. The Supreme Court in that matter is clear about the examination of the person who has been granted pardon. Para-7 reads thus :-
7. It was contended by Mr. Murlidharr,learned counsel appearing for the appellant that Sudipa was not examined as a witness as contemplated by Section 306 (4) CrPC. He submitted that Sudipa was examined by the Magistrate in his chamber and not in the open court and at that time the accused were not kept present. Her evidence was subjected to cross-examination. In support of his submission he relied upon the decision of this Court in Suresh Chandra Bahri v.
State of Bihar. In that case this Court after pointing out the object and purpose of enacting Section 306(4) CrPC had held that since the provision had been made for the benefit of the accused it must be regarded as mandatory. It had observed therein that: (SCC p.101 para30) The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing court itself at the very threshold... (emphasis supplied) From this observation it does not follow that the person who is granted pardon must be examined in the presence of the accused and that the accused has a right to appear and cross-examine him at that stage also. As pointed out by this Court in that case the object is to provide an opportunity 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 during his evidence at the trial. Considering the object and purpose of examining the person accepting tender of pardon as a witness is thus limited. The proceeding which takes place before the Magistrate at that stage is neither an inquiry nor a trial. Therefore the submission of the learned counsel that Sudipa should have been examined as a witness in open court and not in the chamber and that while she was examined the Magistrate should have kept the accused present and afforded to them an opportunity to cross-examine Sudipa cannot be accepted. The phrase examination of a witness does not necessarily mean examination and cross-examination of that witness. What type of examination of a witness is contemplated would depend upon the object and purpose of that provision. Section 202 CrPC also contemplates examination of witness yet it has been held, considering the object and purpose of that provision, that the accused has no locus standi at that stage. However, it is not necessary to deal with this contention any further as the facts of this case do not support the contention. The record of the Magistrate which was perused by both the courts below and which we have also scrutinised carefully discloses that on 2/2/1992 Sudipa and both the accused were produced before the Magistrate for recording her statement under Section 306 CrPC. On that day, the learned Magistrate, in the presence of the accused, passed an order for producing Sudipa on 4/11/1992 for examining her as a witness. On 4/11/1992 both the accused were present in the chamber of the learned Magistrate and in their presence the statement of Sudipa was recorded under Section 306(4) till 5.00 p.m., and the police was directed to keep all of them present on 9/11/1992 for recording her further statement. On 9/11/1992 her further statement was recorded. Copies of the evidence of Sudipa were supplied to both the accused and that fact was ascertained by the learned Magistrate on 25/11/1992 when all of them were produced before him. The learned Magistrate had thereafter fixed 6/1/1993 as the date for cross-examination of Sudipa. On that day, an application was given on behalf of the appellant for local inspection of the place of offence before crosss-examining Sudipa. That application was granted and the accused were directed to be produced on 3/2/1993 for further cross-examination. The cross-examination of Sudipa was then for different reasons adjourned from time to time and the last date fixed for that purpose was 30/3/1993. On that day the advocate of the appellant did not remain present. The appellant declined to cross-examine her. The lawyer representing Krishnanendu also declined to cross-examine her. Therefore, there is no justification in the grievance made by the learned counsel that Sudipa was examined by the Magistrate in the absence of the appellant and the appellant was not afforded an opportunity to cross-examine her. For this reason it is also not possible to agree with the contention raised by him that the mandatory requirement of Section 306(4) was not complied with.
21. It was further contended on behalf of the informant that the observations in decision of Madras High Court in case reported in 2002 Cr.LJ 2375 with special emphasize upon observations of para nos. 12 to 17 supports the contention that the co-accused cannot question the act of grant of pardon by the Court to one of the accused and it was an internal matter of administration and it cannot affect position of accused or the approver.
22. Learned counsel appearing for the informant thereafter relying upon the observations of the Apex Court in case of Sitaram Sao @ Mungeri v. State of Jharkhand reported in AIR 2008 S.C. pg. 391 extensively relied upon observation of para-34 and contended that the stage of examining approver comes only after there has been grant of pardon, therefore the contention canvassed on behalf of the petitioner that the approvers have not been examined is bereft of merits.
23. Learned counsel for the informant invited this Court s attention to the observations of the Apex Court in case of Dipesh Chandak Vs Union of India, reported in (2004) 8 SCC pg. 511 and laid emphasis upon observations of the Court in para-13 and contended under section 306 of Cr.P.C. the pardon would operate in respect of offence pertaining to the transaction, may be the transaction is capable of attracting more offence.
24. Learned counsel for the informant further contended that provisions of Section 306 (4) operate in a specific manner. Relying upon decision of the Apex Court in case of State of Himachal Pradesh Vs. Surinder Mohan and others, reported in AIR 2000 S.C. pg. 1862 with special emphasis upon para no.20 which is also reproduced here under.
The learned counsel for the accused submitted that Section 306(4)(a) is couched in mandatory term by using the word shall which indicates that if there is breach of the said mandatory provision further trial would be vitiated. In our view, this submission is without any substance. We have pointed out earlier that by not examining the approver, the trial would not get vitiated. Such evidence may have to be scrutinised with greater circumspection. If in such scrutiny the evidence is found reliable the Court can not be inhibited from using the evidence.
25. Learned counsel for the informant further relied upon decision of the Apex Court in case of Narayan Chetanram Chaudhary and another v. State of Maharashtra, reported in AIR 2000 S.C. pg. 3352, with special emphasiz on the observations of para no. 27, which read as under.
There is no legal obligation on the trial Court or a right in favour of the accused to insist for the compliance with the requirement of Section 306(4) of the Cr.P.C. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to the compliance of conditions specified in sub-section (1) of Section 306. The law mandates the satisfaction of the Court granting pardon, that the accused would make a full and true disclosure 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. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the trial Court. The trial Court, in this case has taken all precautions in complying with the provisions of Section 306(1) before tendering pardon to accused Raju, who later appeared as P.W. 2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of P.W. 2.
Thus it was contended that scope of challenge to order of pardon on ground of so called non-compliance with section 306 (4) is so very limited as to its entitlement the petitioner from challenging the same as the pardon and grant of pardon is essentially between the court and the approval and the person seeking pardon and the State for the complainant. In support of aforesaid submission one more decision is relied upon in case of Santosh Kumar Satishbhusan Bariyar V. State of Maharashtra, reported in AIR 2010 SC (Supp) pg. 612.
26. Learned counsel for the informant further elaborately contended that power of granting pardon is not attached with any conditions like incorporating reasons in the order of pardon as is held by the Apex Court in case of Lt.
Commander Pascal Fernandes Vs. State of Maharashtra and others reported in AIR 1968 SC 594.
Special emphasize was laid on para no. 11 & 12 which could be set out as under.
11. It follows that the powers of the Special Judge are not circumscribed by any condition except one, namely, that the action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also a condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor. The disclosure must be complete as to himself and as to any other person concerned as principal or abettor. There is no provision for the recording of reasons for so doing, nor is the Special Judge required to furnish a copy to the accused. There is no provision for recording a preliminary statement of the person.
12. There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the section to show that the Special Judge must be moved by the prosecution. He may consider an offer by an accused as in this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this Case.
It was also relied upon by supporting submission that no preliminary statement is canvassed was required to be recorded from the applicant or proposed approver and it is not that the offer has to come from prosecution. This judgment is relied upon to canvass the aforesaid proposition of law.
27. Learned counsel for the informant invited this Court s attention to rojkam. As it is stated herein above and submitted the Court has in fact kept the matter for recording statement under 164 Cr.P.C. as could be seen from the rojkam dated 19/3/2013. Learned counsel for the informant also vehemently contended that the averments in the petition essentially in two grounds do not contend correct facts and to that extent it can be said that it is an attempt to suppress the material facts.
28. Learned counsel for the informant further submitted that the locus of the informant could not have been questioned by petitioner as the locus to the complainant who has been referred time & again as informant. So far as the police case is concerned same is acknowledged time & again and the entire criminal justice is put into motion by the informant and it is not only the State who is vitally concerned as otherwise the person responsible for committing offence may go with impunity therefore in such a situation it was always found that the complainant and State s say is taken into consideration. Therefore so far as locus of the informant is concerned it assumes greater important and therefore the counsel is not correct in contending that there exists no locus in the informant in support or against the process of pardon even if it is moved by the applicant to be proposed approver. The Division Bench in case UP State Vs. Kailash Nath Agarwal (supra) especially recognised locus of the informant in such a case and under provision of section 300 (1) of CrPC.
29. Learned counsel for the informant further contended that the pardon is sought to be assailed on ground that the purpose of granting pardon for arriving at the truth is not as per principles of grating pardon. But in the instant case the peculiar facts & circumstances of the case as well as order granting burden which extensively make reference to the fact on record indicate that they were as many as 5 registered societies and dealing by concerned and details and differences were required to be brought on record to bring home guilt on the part of the principal accused. Therefore granting pardon to a co-accused in itself would not be sufficient as the facts qua other society and role of the accused qua other societies would not be known to that accused hence all the four co-accused have rightly been granted pardon. The pardon granted to all the four would help bringing home the guilt on the part of the responsible.
30. This Court has heard learned counsels for the parties at length. The Court is of the considered view that plain reading of section 306 is sufficient to successfully hold that the pardon procedure do not make it mandatory for recording confessional statement under 164 CrPC as condition precedent, while considering the request either of prosecution or of co-accused for seeking pardon and becoming approver. The plain reading of provision would not require any further and repeated discussion though the decisions cited at the Bar on behalf of the informant s counsel throw sufficient light on this aspect which would indicate that the accused is not necessarily required to be pardoned only after recording his confessional statement under 164 CrPC. In other words the moment there is a move for seeking pardon on the part of the co-accused or a request for grant pardon to co-accused on behalf of the prosecution. Learned Magistrate has to weigh the genuineness of the request and possibility of co-accuseds bonafide in helping the Court in reaching to the truth for punishing the guilty. The co-accused seeking pardon may help prosecution in bringing home the guilt by giving exhaustive and complete facts leading to commission of offence for which the prosecution has been initiated. The Court therefore is not inclined to accept the submission on behalf of the petitioner that the pardon must be preceded by the confessional statement recorded under 164 CrPC. The Counsel for the petitioner is contending that the statement in form of affidavit before Notary Public cannot be passed up as statement under S.164 is also of no avail to the petitioner as those affidavits are not the sole basis for granting pardon and the Trial Court has not treated them to be only statement for granting pardon as the trial court has in fact slated 1.04.2013 a date for recording those approvers statement under section 164 of CrPC.
31. The Court is of the considered view that in the scheme of CrPC and in the criminal jurisprudence dispensing justice in a matter like this and legislative intention behind section 306 need to be constantly borne-in-mind while examining any attack on power of the Court in granting pardon at the instance of co-accused. The co-accused in the instant case attempted to assail the application for granting pardon on various grounds which have been narrated herein above, wherein the non-recording of statement of applicant co-accused seeking pardon under section 164 is the one which has already been dealt with by this Court. This Court is to consider second ground namely affidavits accompanying application seeking pardon also cannot be said to be such a disclosure as to persuade the concerned Court for granting pardon. The Court needs to look at the documents from the angle of the person seeking pardon and possibility of reaching the truth on account of such a proposal, if the record is read & allegations are examined, then, the contention raised on behalf of the petitioner would be required to be rejected as the affidavits are not the sole confessional statement nor are they treated as such as the trial court has in fact fixed a date for recording such confessional statements of those co-accused. The affidavit which is though exhaustive is to be viewed in order to assess the co-accused(s) willingness to clean their breasts by way of confessional statement later on which would help in reaching the truth so as to bring home guilt on the part of the concerned. The undue weightage sought to be attached to the affidavits accompanying application of pardon for assailing the applicants bonafide could not be accepted though the Court hasten to add here that there are in fact averments which are not capable of being explained as to how those kind of averements may help in reaching the truth. But the Court need not elaborately dwell upon this aspect at this stage. Suffice it to say that what is material is going to be confessional statement under section 164 which is going to be recorded of all the persons now treated to be approver and those statements will have its own bearing upon the controversy in question. The Court, therefore, is not impressed by the submission canvassed on the part of the petitioner qua the veracity or otherwise of the so called confessional statement accompanying the application for pardon. As the Court is not impressed by this submission on the ground that those statement are not the only statement, this statement cannot pass the test of section 164 as it is not put to the person of their liability to be proceeded against etc are not dealt with, though there appears to be only an attempt to indicate that they were the confessional statements. The reading of the statement indicate that in order to lend credence to the statement such a claim is made, but the Court has not given up its insistence qua recording of statement under Section 164 Cr.P.C.
32. The facts remains to be noted that except the decision of the Apex Court in case State of U.P. Vs. Kmailash Nath Agarwal (supra) there is no other observation of any Court which may even remotely help the contention of learned counsel for the petitioner. Learned counsel for the petitioner has vehemently contended qua locus which has been with equal vehemence opposed by the counsel for the informant as well as learned APP. If one looks at the observation of the Apex Court on case of State of UP Vs. Kailash Nath Agarwal (supra) it cannot be said that the subject matter was that of locus as such the real controversy was revolving around the exercise of jurisdiction by District Magistrate when the Judicial Magistrate had refused the exercise of the power in this behalf, and the grant of pardon was in fact questioned by the co-accused only. Therefore this observations are sought to be relied upon to canvass a proposition of law that co-accused has locus to challenge the order of pardon. The observations made by Division Bench of this Court in case of. Central Bureau of Investigation Vs. N.K. Amin and other (supra) has also been pressed into service to suggest that the locus has not been denied even by the Division Bench also. Therefore the question qua locus may not be held against the petitioner for non-suiting her. The Court is of the considered view that the question of locus on the part of the co-accused as such is not required to be gone into in this petition. However it is required to be noted that the number of citations and authorities pressed into service on behalf of the informant had indicated one proposition of law unequivocally that the Courts do not acknowledge any substantive say or right to substantive say on the part of co-accused, but that would not amount to completely denying locus. In a given case court may examine the controversy raised on behalf of the co-accused also if it is palpably wrong or erroneous. In the instant case the development of events and record of the order impugned in this petition clearly reveal that learned Magistrate has considered all the aspects before concluding in favour of the applicant for granting them pardon. Learned counsel for the informant had taken the Court extensively to the order passed to indicate that learned Magistrate has in fact linked and appreciated the material existing on record to come to a conclusion that if pardon is granted than it would surely help the cause of justice and help in arriving at truth which may help successful conclusion of trial.
33. The Court is of the considered view that the contention raised on behalf of the petitioner qua non-attachment of the condition cannot be brushed aside in any manner as he has established from the plain reading of the order impugned which shows that no express conditions are attached to the grant of pardon. But those conditions are to be looked into and gathered from the entire facts the affidavit and knowledge on the part of the co-accused that they are invoking power with special knowledge that they are under obligation to tell the truth. Therefore merely not expressing conditions of such a nature in the formal order would not render it vitiated at all. The entire facts affirmed and placed on record along with the application unequivocally make one and only condition which is absolutely clear qua applicants clear understanding that the pardon is on the condition of there being truthful in their statement that may be recorded under 164 CrPC though there is no express condition which may be pleaded that may come handy for enforcing section 308 CRPC in the event of any such eventuality arising. The Court is of the view that the Court granting power is amply empowered by statutory provision in form of 308 to take sufficient precaution and moreover it is to see that the approver makes thorough and correct statement leading to unearthing the modus operandi of commissioning of crime. Non attachment to condition would also not debar exercise and invocation of section 308 as it is also observed by the Apex Court that the signature of PP is not a condition precedent for the Court to invoke power under section 308. The Apex Court in case of Narayan Chetanram Chaudhary and another Vs. State of Maharashtra, reported in AIR 2000 SC 3352 in unequivocal terms observe that the Court at any stage during the trial is entitled to invoke provision of section 308 irrespective of PP certifying. Meaning thereby the Court granting pardon is not in any manner restrained and or impeded on account of non attachment of a condition. The Court granting power is having full and complete control over the case and at any stage irrespective of certificate from PP if the court is satisfied that approver has not canvassed or given correct factor then in such a situation it would be proper for the Court to invoke section 308 and that way the non attachment of express condition can be said to be not a ground as to entertain the order. Assuming for the sake of examining without holding of non attachment of condition is acting as a fatality then also it can well be said that the entire exercise would be undertaken afresh but in order to save forensic time as far as it to say that the concerned Magistrate while recording statement under 164 it may take note of this facts and ensure that the approver should have been granted pardon rather having no misgiving qua their liability, responsibility of pardon which is given to them on a condition of they being clearly stating truth and nothing but truth.
34. The Court is of the considered view that elaborate discussion of authorities at this stage is not required as the Court has in fact while recording the contentions of rival parties recorded in-depth all the contentions which in my view are necessary by reasoning mentioned herein above.
35. In the result the petition being bereft of merits deserves rejection and is accordingly rejected.
36. At this stage request is made by learned counsel for the petitioner for granting some time to approach the Apex Court which is vehemently opposed by learned counsel for the informant as well as Learned APP on the ground that recording of section 164 CrPC statement can never be impeded by any Court as it is purely a matter between the Court and the person making the application. The resultant effect is to be decided and argued by concerned parties as per their understanding. In light of this the Court is of the view that when the Court has not granted any interim relief in the beginning the same cannot now be granted or else it would amount to granting relief after rejecting the matter which would not be in the fitness of things. Hence rejected.
37. Another prayer was made by learned counsel for the petitioner for directing the Court below for granting adjournment, which in my view also now be not permissible as the Court has rendered its verdict.
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