Delhi District Court
Virender Kumar vs State on 25 October, 2021
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI.
Cr. Rev. No. 09/21
FIR No. 428/2011
PS : New Usmanpur
Virender Kumar
S/o Sh. Prem Singh
R/o A-4/20, DLF Ankur Vihar,
Loni, Ghaziabad, UP ....Revisionist
Versus
State
Through SHO / IO
Crime Branch Nand Nagri
Delhi ....Respondent
Date of institution / transfer : 03.03.2021
Date of Arguments : 21.09.2021
Date of Pronouncement : 25.10.2021
JUDGMENT :
1. Vide this judgment I shall dispose of this revision petition filed by the revisionist with the facts that the charge-sheet in case FIR No. 428/2011 U/S 302/201/202/120B/34 IPC registered with PS New Usmanpur was duly filed by Crime Branch after investigation before the court of Ld. CMM and CR No. 09/21 Virender Vs. State 1 of 24 Charge Sheet was duly committed to the Court of Session on 04/07/2019. It is further argued that the co-accused namely Sanjay Kumar Suri moved an application u/s 307 Cr.P.C. for seeking pardon before the Court of Addl. Session Judge, (herein after shall be called this Court), but said application was dismissed for non-prosecution vide order dated 17.10.2019 passed by the Ld. Predecessor.
2. After dismissal of earlier application under Section 307 Cr.P.C., IO along with applicant Sanjay Kumar Suri filed an application u/s 306 Cr.P.C. before the Court of Ld. CMM /NE and said application was marked to the Court of Ld. MM for disposal as per law. Ld. MM passed an order dated 17/10/2019 thereby tendering pardon which was duly accepted by the accused/ applicant in terms of Section 306 Cr.P.C. It is further argued that revisionist is one of the co-accused of the case and has challenged the order of tendering pardon to co-accused being aggrieved by the said pardon.
3. Ld. Counsel for the revisionist has argued that the order of granting pardon to co-accused by the Court of Ld. MM was beyond the jurisdiction of the Court of Ld. MM as charge-sheet in the case had already been committed to the Court of Session and thereafter, the court to whom charge sheet was committed was the only Court of Competent Jurisdiction to adjudicate such application for granting of pardon and ought to be adjudicated by this court. It is further argued that the order passed by the court of Ld. MM is liable to be set aside. In support of his arguments, Ld. Counsel for the revisionist has relied upon a case titled A. Deivendran v.
CR No. 09/21 Virender Vs. State 2 of 24 State of Tamil Nadu through the Secretary, Department of Home Fort St. George, Madras, JT 1997 (8) SC 619.
4. On the other hand, Ld. APP for the State has opposed this revision petition on the ground that the order passed by the Court of Ld. MM was legal and valid order in view of the facts that the revisionist is one of the co- accused who has no right to challenge the order of granting pardon to co- accused, due to this revision is liable to be dismissed. It is further argued that the dismissal of earlier application under section 307 Cr.P.C. by this Court was not an impediment to file another application under Section 306 Cr.P.C. before the court of Ld. CMM for adjudication, as conducting further investigation was/is the right of investigating agency/ police by virtue of Section 173 (8) Cr.P.C. and moving application u/s 306 Cr.P.C. for tendering pardon was at the stage of further investigation, due to there is no illegality in the order of pardon passed by Ld. MM. It is further argued that prosecution has availed the benefit of legal procedure which is not illegal and this revision petition filed on behalf of co-accused is liable to be dismissed. In support of his arguments Ld. APP for State has relied upon cases titled Central Bureau of Investigation v. Ashok Kumar Aggarwal, (2013) 15 SCC 222 and P.C. Mishra v. State (Central Bureau of Investigation) and Another.
5. I have heard the arguments and perused the record. Admittedly, initially an application u/s 307 Cr.P.C. was filed by the accused before this court during the pendency of main trial before this court, but the said CR No. 09/21 Virender Vs. State 3 of 24 application was dismissed for non-persecution by the Ld. Predecessor vide order dated 03/09/2019. On dismissal of the earlier application u/s 307 Cr.P.C. by this court, co-accused Surender Kumar Suri filed another application u/s 306 Cr.P.C. before the Court of Ld. CMM, NE which was marked to the Court of Ld. MM. The Court of Ld. MM adjudicated that application and proceeded to grant pardon to co-accused, which is under challenge.
6. Now the issue arises as to whether the Court of Ld. CMM / MM was competent enough to exercise jurisdiction to adjudicate such application u/s 306 Cr.P.C. and to grant pardon after committal of the charge sheet to the Court of Session or not. Before proceeding further, it is necessary to go through the legal proposition regarding jurisdiction of the Court of Ld. CMM/MM u/s 306 and Court of Sessions u/s 307 Cr.P.C. after committal of charge sheet. The jurisdiction of the Court of Ld. CMM/MM to deal with such application lies under Section 306 which provides:
"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 CR No. 09/21 Virender Vs. State 4 of 24 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;
(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 CR No. 09/21 Virender Vs. State 5 of 24 Criminal Law Amendment Act, 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 provides:
"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."
A perusal of both the sections clearly indicates that Section 306 is applicable in a case where order of commitment has not been passed and Section 307 would be applicable only after commitment of the case but before the judgment is pronounced. The provisions of sub-section (4)(a) of Section 306 would be attracted only at a stage when the case is not committed to the Court of Session. After the commitment, the pardon is to be granted by the trial court subject to the conditions specified in sub- section (1) of Section 306, i.e., approver 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.
7. The Hon'ble Supreme Court has dealt with the scope of granting pardon extensively in case titled A. Devendran v. State of T.N., (1997) 11 SCC 720 which has also been relied upon the Ld. Counsel for Revisionist CR No. 09/21 Virender Vs. State 6 of 24 also. The observations of the court are material as under:
6. In view of the rival submissions, the first question that arises for consideration is whether the approver's evidence can at all be relied upon to bring home the charge against the accused persons? It is no doubt true that the very object of granting pardon to an accused is to unfold the truth in grave offence so that other accused persons involved in the offence could be brought home with the aid of the evidence of the approver. But all the same the legislative mandate as well as the safeguards enshrined in the provisions of the Code for the accused cannot be given a go-by merely because of gravity of the offence. With this background in mind it would be necessary to examine the provisions of the Code for testing the correctness of the rival submissions. Coming now to the question as to whether the Chief Judicial Magistrate could have at all granted pardon to the accused even after the committal of the proceedings to the Court of Session, the same would depend upon the interpretation of Sections 306 and 307 of the Code. A combined reading of the aforesaid two provisions would indicate that under Section 306 power has been conferred upon the Chief Judicial Magistrate or a Metropolitan Magistrate as well as the Magistrate of the First Class to tender pardon to a person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence. The only distinction between the two sets of Magistrates for exercise of their power lies at the stage when the power can be exercised.
While a Magistrate of the First Class can exercise the power while enquiring into or trying the offence in question, the Chief Judicial Magistrate or a Metropolitan Magistrate can exercise the power at any stage of investigation or enquiry into or trial of the offence which they themselves may not be trying. But under CR No. 09/21 Virender Vs. State 7 of 24 Section 307 the power has been conferred upon the court to which the commitment is made to grant pardon. In other words once a proceeding is committed to a Court of Session then only the said Court can exercise power to tender pardon to an accused. Section 307 of the Code corresponds to Section 338 of the Criminal Procedure Code, 1878. If the two provisions are examined in juxtaposition it would be clear that while under Section 338 of the old Code after commitment is made the Court to which the commitment was made could himself tender pardon to an accused or could order the committing Magistrate or the District Magistrate to tender pardon, but under Section 307 of the Code of 1973 the Court to whom commitment is made, no longer retains the power to order the committing Magistrate or the District Magistrate to tender pardon. In other words under Section 307 of the present Code after commitment of a case the only Court which can tender pardon is the Court to which the commitment has been made. It would be appropriate at this stage to extract Section 338 of the old Code and the corresponding provisions of Section 307 of the new Code:
"338. Power to direct tender of pardon.--At any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender or order the Committing Magistrate or the District Magistrate to tender a pardon on the same condition to such person."
"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 CR No. 09/21 Virender Vs. State 8 of 24 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."
In view of the aforesaid change in the provisions it is difficult for us to accept the contention of the learned counsel appearing for the State that even under Section 307 after commitment of a case a Chief Judicial Magistrate retains the power to grant pardon. It may not be out of place to notice the recommendations of the Law Commission in its 41st Report in paragraph 24.23:
"24.23. Under Section 338, the Court of Session may at any time after commitment of the case, but before passing judgment, either tender pardon itself, or may 'order the committing Magistrate or the District Magistrate' to tender pardon. Though this power is rarely resorted to by a Court of Session, it will be useful to retain the section. But in view of the abolition of the commitment proceedings the Court of Session need not be authorised to direct 'the committing Magistrate' or any other Magistrate to tender pardon. The section may be revised to read as follows:
'338. At any time after commitment of a case but before judgment is passed, the Court of Session may, with the 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.' "
The aforesaid section has now taken the place of Section 307 in the new Code. This indicates that in the changed circumstances the legislature thought it necessary to delete the expression "or CR No. 09/21 Virender Vs. State 9 of 24 order the committing Magistrate or the District Magistrate to tender a pardon" from Section 307 of the present Code which was there in Section 338 of the previous Code. On a plain reading of the provisions contained in Sections 306 and 307 of the Code and on examining the changes that have been brought about by the legislature from the corresponding provisions of the old Code, the conclusion is irresistible that under the new Procedure Code of 1973 once a case is committed to the Court of Session then it is only that Court to which the proceedings have been committed can tender pardon to a person and the Chief Judicial Magistrate cannot be said to have concurrent jurisdiction for tendering pardon.
8. A plain reading of the aforesaid provision indicates that a Sessions Judge has been empowered to make provision for disposal of any urgent application in certain contingencies by requiring an Additional or Assistant Sessions Judge or in their absence the Chief Judicial Magistrate to deal with an application which otherwise would have been dealt with by the Sessions Judge. This power can be exercised when the Sessions Judge himself is absent or is unable to act. Then again the Chief Judicial Magistrate can be required to act under this sub- section not merely when the Sessions Judge himself is absent or unable to act but also when there is no Additional or Assistant Sessions Judge. In the case in hand there is not an iota of material to indicate that the preconditions for exercise of power under sub-section (3) of Section 10 of the Code were satisfied or that in fact the Sessions Judge exercised his power under sub- section (3) of Section 10. In this view of the matter, the order of the Sessions Judge dated 27-10-1994 in forwarding the application for grant of pardon to the Chief Judicial Magistrate CR No. 09/21 Virender Vs. State 10 of 24 as well as order of the Chief Judicial Magistrate dated 14-11- 1994 granting pardon to the accused who was examined as PW 1 is not sustainable in law. It would also be appropriate to deal with submission of Mr Mohan appearing for the respondent that the expression "trial" in Section 306(1) would mean trial of an offence triable by the Court of Session and as such a Metropolitan Magistrate or the Chief Judicial Magistrate may tender a pardon to a person even after the commitment of the case to the Court of Session during the course of trial by the Sessions Judge. We are unable to accept this contention of the learned counsel as in our view the plain and unambiguous language of Section 307 of the Code makes it explicitly clear that after the commitment of a case the power to tender pardon lies, under the Code, with the court to which the commitment is made and not with any other Magistrate including the Chief Judicial Magistrate. Once a commitment is made the committing Magistrate no longer retains jurisdiction over the proceedings and that apart the unambiguous language of Section 307 of the Code does not confer such power on a Magistrate to tender pardon after a case is committed to the Court of Session. The expression "trial" used in sub-section (1) of Section 306 would, therefore, convey the meaning those cases which are triable either by a Magistrate or the Chief Judicial Magistrate. In other words, in respect of those cases which are triable by a Magistrate, while the Magistrate of First Class inquiring into or trying the offence can tender pardon at any stage of inquiry or trial, the Chief Judicial Magistrate can tender pardon at any stage of investigation, or inquiring into or the trial. Further a Magistrate, First Class, who is in session of the case can tender pardon in course of inquiry or trial of the said case while the Chief Judicial Magistrate or Metropolitan CR No. 09/21 Virender Vs. State 11 of 24 Magistrate can tender pardon even though the trial is pending before another First Class Magistrate. But by no stretch of imagination can it be construed that under Section 306(1) of the Code a Chief Judicial Magistrate or Metropolitan Magistrate has the power to grant pardon even after the commitment of the proceedings to the Court of Session.
9. At this stage we think it appropriate to notice another submission of Mr. Mohan appearing for the respondent that the order of the Chief Judicial Magistrate tendering pardon can at the most be an irregularity curable under Section 460(g) of the Code and is not null and void. Section 460, no doubt cures the irregularity specified in the section if it is committed by a Magistrate not empowered by the law provided he committed irregularity erroneously in good faith. Clause (g) relates to tender pardon under Section 306. It would, therefore, appear that a Magistrate who was not empowered under Section 306 to tender pardon but actually tenders pardon in good faith erroneously then such an irregularity would be curable. Section 460 can have no reference to an act of a Magistrate who is empowered under Section 306 but does not possess the jurisdiction after an order of commitment is passed. The Chief Judicial Magistrate no doubt was authorised under Section 306 of the Code to tender pardon in course of an investigation, inquiry or trial before the committal of the proceedings to the Court of Session. But after commitment of the proceedings he does not have jurisdiction to grant pardon and in such a case if the said Chief Judicial Magistrate tenders pardon then that would not be a curable irregularity within the ambit of clause
(g) of Section 460 of the Code. This conclusion of ours is further strengthened from the fact that under the 1898 Code, CR No. 09/21 Virender Vs. State 12 of 24 the corresponding provision to Section 460(g) of the 1973 Code was Section 529(g). In the said provision it was specifically stated that if any Magistrate not empowered by law to tender pardon under Section 337 or 338 the same would not vitiate the proceedings. But under Section 460(g) of the new Code the legislature has omitted Section 307 which is corresponding to Section 338, and therefore, such irregularity committed by the Magistrate cannot be said to be a curable irregularity under clause (g) of Section 460.
11. The correctness of the rival submissions again would depend upon true interpretation of Sections 306 and 307 of the Code. Under Section 307 when pardon is tendered after commitment of the proceedings by the Court to which the commitment has been made the legislative mandate is that the pardon would be tendered on the same condition. The expression "on the same condition" obviously refers to the condition of tendering a pardon engrafted in sub-section (1) of Section 306, the said condition being that the person concerned makes a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Sub-section (4) of Section 306 cannot be held to be a condition for tendering pardon. A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of CR No. 09/21 Virender Vs. State 13 of 24 sub-section (4) of Section 306 are not attracted. The procedural requirement under sub-section (4)(a) of Section 306 to examine the accused after tendering pardon cannot be held to be a condition of grant of pardon. The case of Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] on which the learned counsel for the appellants strongly relied upon deals with a case where pardon had been tendered to an accused before the commitment proceedings and the question was whether non-compliance of sub-section (4)(a) of Section 306 would vitiate the trial. The Court held that the provision contained in clause (a) of sub-section (4) of Section 306 is of mandatory nature and, therefore, non-compliance of the same would render an order of commitment illegal. It is no doubt true, as contended by Mr Muralidhar, the learned counsel appearing for the appellants, that the procedure indicated in sub-section (4)(a) of Section 306 is intended to provide a safeguard to an accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and thereby the accused becomes aware of the evidence against him and further such evidence of an approver can be ultimately shown as untrustworthy during the trial when the said approver makes any contradictions or improvements to his earlier version. But still when the legislature in Section 307 have made specific reference to only "such conditions" and not to the other procedures in Section 306 it would not be a rule of interpretation to hold that even sub-section (4)(a) of Section 306 would also be applicable in such a case.
15. ... in view of our interpretation already made, that after a criminal proceeding is committed to a Court of Session it is CR No. 09/21 Virender Vs. State 14 of 24 only the Court of Session which has the jurisdiction to tender pardon to an accused and the Chief Judicial Magistrate does not possess any such jurisdiction, it would be impossible to hold that such tender of pardon by the Chief Judicial Magistrate can be accepted and the evidence of the approver thereafter can be considered by attracting the provisions of Section 465 of the Code. The aforesaid provision cannot be applied to a patent defect of jurisdiction. Then again it is not a case of reversing the sentence or order passed by a court of competent jurisdiction but is a case where only a particular item of evidence has been taken out of consideration as that evidence of the so-called approver has been held by us to be not a legal evidence since pardon had been tendered by a court of incompetent jurisdiction... To tender pardon by a Chief Judicial Magistrate cannot be held to be a mere case of irregularity nor can it be said that there has been no failure of justice. It is a case of total lack of jurisdiction, and consequently the follow-up action on account of such an order of a Magistrate without jurisdiction cannot be taken into consideration at all...
8. Again, both the above said sections came into interpretation before the Hon'ble Apex Court in case titled Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457 and observation of the court is again material and is as under: -
34. Sub-section (4) of Section 306 is procedural in nature. It is necessary to be followed only by a Magistrate as he would not have any jurisdiction to try the case himself. The learned Sessions Judge before whom the case is committed for trial must be informed as to on what basis pardon had been tendered.
Section 307 does not contain any such condition. The power of CR No. 09/21 Virender Vs. State 15 of 24 the learned Sessions Judge is independent of the provisions contained in Section 306 thereof. The condition mentioned in Section 307 refers to the condition laid down in sub-section (1) of Section 306, namely, that the person in whose favour the pardon has been tendered, will make a full and true disclosure of the whole of the circumstances within his knowledge. The power of a Sessions Court is not hedged with any other condition.
9. Further, case titled P.C. Mishra v. State (CBI), (2014) 14 SCC 629 it was observation that: -
11. We are, in this appeal, concerned with the correctness or otherwise of the order passed by the Magistrate in granting pardon exercising powers under Section 306 Cr.PC during the course of investigation of the case and before the submission of the charge-sheet before the Special Judge. CBI, as already stated, had filed an application for grant of pardon before the Special Judge at a stage when investigation was going on and the Special Judge, in its wisdom, thought it appropriate that the application be dealt with by the Chief Metropolitan Magistrate, since investigation was not over and charge-sheet was not submitted before him. The Chief Metropolitan Magistrate, however, assigned the matter to the Metropolitan Magistrate.
Situation would have been different if the investigation was over, charge-sheet had been submitted and the charges were framed against the accused. In our view, at the stage of investigation, the power conferred on the Magistrate under Section 306 CrPC (Section 337 CrPC, 1898, old Code) has not been taken away, even if the offence can ultimately be tried by a Special Judge. Section 306 CrPC is applicable in a case where the order of committal has not been passed, while Section 307 CrPC is applicable after the committal of the case before the judgment CR No. 09/21 Virender Vs. State 16 of 24 is pronounced. This Court in A. Devendran v. State of T.N. [(1997) 11 SCC 720 : 1998 SCC (Cri) 220 : 1997 Supp (4) SCR 591] opined that after committal of the case, the power to grant pardon vests in the court to which the case has been committed and the pardon granted by the Chief Judicial Magistrate is not a curable irregularity.
17. We have already held, both the Magistrate as well as the Special Judge has concurrent jurisdiction in granting pardon under Section 306 CrPC while the investigation is going on. But, in a case, where the Magistrate has exercised his jurisdiction under Section 306 CrPC even after the appointment of a Special Judge under the PC Act and has passed an order granting pardon, the same is only a curable irregularity, which will not vitiate the proceedings, provided the order is passed in good faith. In fact, in the instant case, the Special Judge himself has referred the application to the Chief Metropolitan Magistrate/Metropolitan Magistrate to deal with the same since the case was under investigation. In such circumstances, we find no error in the Special Judge directing the Chief Metropolitan Magistrate or the Metropolitan Magistrate to pass appropriate orders on the application of CBI in granting pardon to the second respondent so as to facilitate the investigation.
10. In fact, the above said judgments have made it very clear that the jurisdiction of the Court of Ld. CMM or MM u/s 306 CrPC is pertaining to the granting of pardon to an accused to the stage of investigation or inquiry only and for the purpose of trial this jurisdiction is confined to those cases only which are likely to be tried by them. However, the Ld. CMM may CR No. 09/21 Virender Vs. State 17 of 24 grant pardon in those cases also which are likely to be tried by the court of Ld. MM, but not vice-versa. But, in the cases where charge sheet has already been committed to the Court of Session, the court to whom charge sheet has been committed, has sole jurisdiction to entertain application u/s 307 Cr.PC to grant pardon and power u/s 307 Cr.P.C. cannot be delegated to the Court of Ld. CMM or Ld. MM, even by the Session Judge / Addl. Session Judge for the reason whatsoever. If such power is delegated for any reason whatsoever, then it shall not a curable defect at later stage. However, where investigation is going on and even Special Judge has been appointed to try case, then both i.e. CMM/MM and Special Judge would have concurrent jurisdiction to grant pardon. In the present case, main case had already been committed to Court of Session for trial on 04/07/2019, whereas Ld. MM granted pardon to accused on 17/10/2019 which was definitely beyond the jurisdiction of the court of Ld. MM.
11. Ld. Addl. PP for State has argued that Revisionist is co-accused of approver and has no right to challenge this order of granting pardon, due to this revision is liable to be dismissed. In support of this argument, Ld. Addl. PP for State has relied upon case titled CBI v. Ashok Kumar Aggarwal, (2013) 15 SCC 222. However, before commenting upon the argument, it is necessary to go through the observations of the Hon'ble Apex Court as under: -
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 CR No. 09/21 Virender Vs. State 18 of 24 Ranadhir Basu v. State of W.B. [(2000) 3 SCC 161 : 2000 SCC (Cri) 587] However, the revisional powers under Section 397 read with Section 401 CrPC 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.PC 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 recognised 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 Coop. Housing Society Ltd. v. State of Maharashtra [AIR 1966 SC 1449] and State of U.P. v. Kailash Nath Agarwal [(1973) 1 SCC 751 : 1973 SCC (Cri) 698 : AIR 1973 SC 2210] .) In view of the above said case law, it stands proved that, though co-accused has no right to challenge the order of granting pardon to co-accused, yet the Court of Ld. CMM/ MM has exceeded its jurisdiction by granting pardon to accused in a case which had already been committed to the court of Session and court of Ld. CMM/ MM had become ex-functus officio. No doubt co-
accused has no legal right to challenge the order of Ld. MM, yet Sections 397, 399 r/w 401 Cr.PC have conferred power upon revisional court, while exercising revisional jurisdiction, to call the record of lower court to check and rectify the illegality in the record to prevent the miscarriage of justice.
12. The powers of the Hon'ble High Court as well as Court of Session have been duly recognized and defined u/s 397 Cr.P.C. It is worthwhile to notice a leading case defining the scope of revision titled Amit Kapoor v.
CR No. 09/21 Virender Vs. State 19 of 24 Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 and relevant paragraphs are as under: -
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories afore-stated. Even framing of charge is a much advanced stage in the proceedings under CrPC."
As such, section 397 CrPC provides that the High Court or the Court of Sessions may send for the record of any inferior criminal court for satisfying itself about the "correctness, legality and propriety of any CR No. 09/21 Virender Vs. State 20 of 24 findings, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court". Therefore, it clearly indicates that the court when calls for the record in exercising powers under Section 397 CrPC it is expected to examine the records for the purpose of satisfying itself about legality, propriety and correctness of the order passed and also about the regularity of the proceedings. In fact, this court is well competent to adjudicate the objection of jurisdiction of the Court of Ld. MM to grant the pardon to co-accused in a case already committed to the court of Session, without having jurisdiction, despite co-accused having no right to challenge the order of Ld. MM.
13. Now the issue arises as to why it is necessary to exercise the revisional jurisdiction at this stage. This objection of the accused regarding lack of jurisdiction is going into the merit of the case and if this objection is not considered at this stage, then it is definitely going to cause a failure of justice, especially in view of case titled A. Devendran v. State of T.N. (supra) in which conviction was set aside at appellant stage on the sole ground of lack of jurisdiction in granting pardon. Even otherwise, Section 465(2) Cr.P.C. has laid down that the objection of jurisdiction or any irregularity occasion in failure of justice has to be raised at an early stage and should be cured promptly so that it may not have occasion in failure of justice. The relevant section is as under:
Section 465. "Finding or sentence when reversible by reason of error, omission or irregularity.--(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or CR No. 09/21 Virender Vs. State 21 of 24 altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
As such, it stands clear that this court has jurisdiction to adjudicate the plea of jurisdiction raised by the revisionist and same is also found valid.
14. Ld. Addl. PP for the State has emphasized that it was the right of the police to conduct further investigation and to file supplementary charge sheet even after filing of charge-sheet and order on this application under Section 306 Cr.PC was part of it due to granting pardon was valid and this revision is liable to be dismissed. However, this objection has no substance. No doubt police have authority to conduct further investigation for collection of new evidence and to file subsequent charge-sheet in terms of Section 173(8) of Cr.P.C., but moving of an application before the court of wrong jurisdiction for precuring an order does not amount to collection of further evidence. IO was well aware that charge-sheet had already been committed to the Session Court after completion of investigation and also that application of accused u/s 307 Cr.P.C had already been dismissed on 03/09/2019 itself, but still he did not object. In fact, invoking of jurisdiction CR No. 09/21 Virender Vs. State 22 of 24 of lower court after dismissal of similar application by higher court cannot be collection of evidence by further investigation by any stretch of imagination. Rather, it was a case of outreach of the jurisdiction of this court and was a classic case of Forum Shopping, which cannot be justified by invoking Section 173(8) of Cr.PC.
15. Keeping in view of the facts and circumstances of the case, I am of the considered opinion that the order dated 17/10/2019 passed by the court of Ld. MM u/s 306 Cr.PC thereby tendering pardon to co-accused Sanjay Kumar Suri and all other consequential proceedings are liable to be set aside, hence set aside.
16. However, it is being made clear that setting aside of the above said order shall not create any impediment in moving a fresh application by prosecution before the Court of competent jurisdiction by adopting the due procedure of law established under section 307 Cr.P.C., as the earlier application under section 307 CrPC was dismissed for non-prosecution and fresh application is not barred.
17. Before parting with this revision petition, it is necessary to notice the conduct of IO, Inspector Surender Kumar, Crime Branch, Delhi. IO was well aware about the status of the case which had already been committed to this court and also used to attend the proceedings before this court. Even he was well aware about the factum that application of accused u/s 307 Cr.P.C had already been dismissed by the Ld. Predecessor of this court vide CR No. 09/21 Virender Vs. State 23 of 24 order dated 03/09/2019, but instead of getting challenged the dismissal order before the Higher Court, he assisted and connived with accused to invoke the wrong jurisdiction of the Court of Ld. CMM/MM by not disclosing the correct facts and compelled to invoke the jurisdiction which was not vested with them and procured the desired order through Forum- Shopping. He did everything deliberately and his conduct amounts to Contempt of Court besides dereliction in his official duties. This deliberate misconduct of IO, Inspector Surender Kumar, Crime Branch, Delhi is liable to be brought into the notice of the Commissioner of Police, Delhi, who shall initiate a time bound inquiry against this IO, Insp. Surender Kumar and shall file an Action Taken Report within the period of 8 weeks positively.
18. Copy of the order be sent to the Court of Ld. MM and also be annexed with the main file pending before this court. Copy of the order also be sent to the Commissioner of Police, Delhi for the necessary action and compliance on his part.
19. Revision File be consigned to Record Room.
Announced in open court (Devender Kumar)
today on 25.10.2021 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
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