Gujarat High Court
Bhagwatiprasad vs State on 28 October, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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CR.RA/556/2007 11/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 556 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHAGWATIPRASAD
DOLATRAI MEHTA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
KB ANANDJIWALA for
Applicant(s) : 1,
MR KP RAWAL, APP for Respondent(s) : 1,
MR YN
RAVANI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 28/10/2010
CAV
JUDGMENT
This revision application is directed against order dated 7.8.2007 passed by learned Special Judge, CBI Court, Ahmedabad. By the said order he was pleased to reject application exh.201 filed by the present petitioner in Special Case No.15 of 1990.
Facts leading to the present petition are as follows :
2.1 The petitioner is the original accused no.1 in FIR dated 21.10.1988. One Prakash J. Raval is shown as accused no.2 in said FIR. Allegations against these accused are as follows :
An information has been received in this branch which revealed that Shri Bhagwatiprasad Dolatrai Mehta @ Bhikhubha(A-1) while functioning as Branch Manager, State Bank of Saurashtra, Surendranagar, during the period from 1979 to 1982, entered into a criminal conspiracy with Shri Prakash J. Rawal(A-2) the then temporary peon of the said bank, and in pursuance thereof, they opined a fictitious current Account in the name of M/s. Atul Traders with initial deposit of Rs.300/- with the said bank, with ulterior motive to cheat the ban to the tune of Rs. 5,28,000/- by way of using genuine mail advices of different realised bills from various other banks/branches and getting credits of the aforesaid amount in the account of the aforesaid firm M/s. Atul Traders purported to be a proprietary concern of one Shri Atul. B. Shah, the account of which was opened on 19/9/1979. Both the aforesaid firm and the proprietar are not in existence.
Subsequently, the accused withdraw a sum of Rs. 5,28,000/-, by forging the cheques from the aforesaid account. One bill for the value of Rs. 24,960/- was tendered in the name of M/s. Mukund Engg. works and the particulars of the same were entered in OBC register at 8-259 which was drawn on State Bank of India, Coimbatore. The said bill was realised on the strength of advice (OBC B-259)Thereafter, the A-1 took possession of the said realised advice of SBI Coimbatore for rs.24960/- in connivance with the A-2 and forged the same as if it was presented by M/s. Atul Traders on M/s. Sunil Textiles, Coimbatore and tendered with SBS, Surendranagar Branch. Thereafter, it was entered in OBC Register at No. OBC B-351. The A-1 removed the said bill from the bunch of bills before its despatch to coimbatore and after 6 days he put the said advice OBC 259 after altering the number as OBC-351 by erasing the original No. and writing the new one as if it was realised on 15/10/79 and the amount of Rs.24960/- was credited in the current account of M/s. Atul Traders and withdraw the same on 15-10-79.
The accused adopted similar modus similar modus operandi in defrauding the amounts mentioned hereunder by using old passed mail advices to prepare fictitious/forged credit vouchers on the basis of the same old records and crediting an amount of Rs.1,35,000/- on 15-1-73. Rs.73,000/- on 11-5-82 Rs.73,000/-on 12-5-82, Rs. 1,25,000/- on 27-5-82 and Rs. 1,00,000/- on 2/6/82 in the account of M/s. Atul Traders, a non existent firm floated by them. Later on the accused withdraw the said amount.
Thus, in the manner aforesaid, the A-1 and A-2 in criminal conspiracy with each other, cheated the state Bank of Saurashtra, Surendranagar Branch by preparing forged documents falsifying the bank records and causing wrongful loss to the tune of Rs. 5,28,000/- and corresponding wrongful gain to themselves, thereby the A-1 and A-2 have committed offences punishable u/ss. 120-B, 420, 467, 468, 471, 477-A of IPC & Section 13(1) read with Section 13(d)(ii) of the prevention of corruption Act, 1988.
2.2 On 13.3.1990, accused no.2 Prakash Raval was arrested in connection with said criminal case. On the same day, CBI filed application before the learned Special Judge. Learned Special Judge on the very same day passed following order :
It appears from this report that the accused wants to offer voluntary confession. He is, therefore, directed to be produced before the Court of Chief Judicial Magistrate,Ahmedabad (Rural) at Ahmedabad for the purpose of recording his confessional statement and to deal with the matter under sec. 306 of Cr.P.C.
2.3 Learned Chief Judicial Magistrate, Ahmedabad(Rural) thereupon after verifying that the said accused wanted to make statement voluntarily passed order on 2.4.1990, granted him pardon on the condition that he will make full and true disclosure before the Court in his evidence.
2.4 On 8.7.1994, Special Judge, CBI Court, framed charges against the present petitioner and other four accused.
2.5 On 6.2.2006, present petitioner filed application exh.201 before the learned Special Judge. In the application, contention of the petitioner was that learned Magistrate while granting pardon had to examine said Prakash Raval as a witness as required under sub-section(4) of Section 306 of the Code of Criminal Procedure which was not done in the present case. Under the circumstances, said witness now cannot be examined before the trial Court. The petitioner therefore, prayed that the prosecution be prevented from examining the said witness by passing appropriate orders. It is this application which the learned Special Judge rejected by impugned order dated 7.8.2007 against which present revision application is filed.
Learned Counsel for the petitioner taking me through provisions contained in Sections 306 and 307 of the Code of Criminal Procedure contended that under sub-section(4) of Section 306, upon granting pardon to said Prakash Raval, he was required to be examined as a witness by the learned Magistrate. In the present case, same was not done. Such requirement is mandatory in nature. Such a witness thereafter, cannot be examined during the course of trial.
On the other hand, learned counsel appearing for CBI opposed the petition contending that :
1) There is gross delay in filing application exh.201.
2) No prejudice is caused to the petitioner. Witness Prakash Raval when examined before the trial Court, would be available for cross examination to the accused.
3) There has been substantial compliance with the provisions contained in Section 307. No interference is therefore, called for.
I have also heard learned APP for the State.
Both sides have referred to several judgements of this Court as well as the Apex Court, reference to which will be made at a later stage.
Before adverting to the statutory provisions, facts as recorded above are not in dispute. The petitioner is accused no.1 in criminal case arising out of FIR Annexure-A dated 21.10.1988. Accused Prakash Raval upon his arrest showed his willingness to make voluntary disclosure and sought pardon. On application by CBI, Special Court referred the question to the competent Magistrate since case was not yet committed for trial. Learned Magistrate after verifying that said accused was making statement voluntarily free from any force or coercion, granted pardon subject to the condition of making full and true disclosure before the trial Court. In the process, learned Magistrate recorded statement of said person which is kept in sealed cover.
Section 306 of the Code of Criminal Procedure pertains to tender of pardon to accomplish. Section 306 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 dis- closure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
(2)This section applies to-
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.(3)
Every Magistrate who tenders a pardon under sub-section (1) shall record-
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.(4)
Every person accepting a tender of pardon made under sub- section (1) -
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.(5)
Where a person has, accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,-
(a) commit it for trial-
(i) to the Court of Session if the, offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(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.
8.1 Section 307 of the Code of Criminal Procedure pertains to powers of the trial Court to direct tender of pardon after commitment of case but before the judgement is passed. Section 307 reads as follows :
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 947 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.
From the plain reading of Sub-section(4) of Section 306, it is clear that every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence. From the language itself and as explained by judicial pronouncements, this requirement is held to be mandatory in nature. In the present case, admittedly, such requirement has not been followed. I have perused the statement of Prakash Raval recorded by learned Magistrate while granting pardon which is kept in sealed cover. I do not find that such recording of the statement can qualify as examination of a witness. I shall therefore, proceed on the basis that said requirement of Sub-section(4) of Section 306 has not been complied with in the present case. Question to be judged is what would be the effect of such noncompliance in the present situation.
It would be at this stage necessary to refer to decisions cited by both sides.
1) In case of State v. Kalu Khoda & State v. Taj Mahmod Sidi and others reported in 1962 GLR 654, Full Bench of this Court interpreting similar provisions of the Code of Criminal Procedure of 1898, was of the opinion that such requirement is mandatory in nature. It was however, observed that for non compliance thereof , tender of pardon by sub-divisional Magistrate at the stage of investigation in the case and acceptance by approver cannot be said to be incompetent or unauthorised.
2) In case of A. Deivendran v. State of Tamil Nadu reported in AIR 1998 Supreme Court 2821, the Apex Court examining the distinction between the committing Court granting pardon under Section 306 and trial Court granting such pardon under Section 307 thereof, it was held and observed that :
...On a plain reading of the provisions contained in Sections 306 and 307 of th 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 a pardon to a person and the Chief Judicial Magistrate cannot be said to have concurred jurisdiction for tendering pardon.
Next question considered by the Apex Court in the said decision was whether non examination of the approver as a witness after grant of pardon and thereby noncompliance of Sub-section(4)(a) of Section 306 vitiates the entire proceedings. In the said case, Chief Judicial Magistrate had granted pardon to the accused who was however, not examined immediately after grant of pardon and was only examined once by learned Sessions Judge in the course of trial. In that background, the question arose was whether when an accused is granted pardon after case is committed to the Court of Sessions, would it be necessary to comply with sub-section(4)(a) of Section 306 of the Code of Criminal Procedure. Question was answered by the Apex Court in the following manner:
11.
The correctness of the rival submission again would depend upon true interpretation of Section 306 and 307 of the Code. Under Section 307 when pardon is tendered after 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 the person concerned on making 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 Subsection (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 proceedings is committed in exercise of powers under Section 307 then in such a case the provision of 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 Bhari etc. vs. State of Bihar 1995 Supp. (1) Supreme Court Cases 80, 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 noncompliance 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 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 of his earlier version. But still when the legislature in Section 307 have made specific reference to only on "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.
3) In case of Narayan Chetanram Chaudhary and another v. State of Maharashtra reported in (2000) 8 Supreme Court Cases 457, the Apex Court once again examined Sections 306 and 307 of the Code of Criminal Procedure. In the said case, however, trial Court had granted pardon under Section 307. It was in this background, Apex Court held and observed that :
27.
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 PW2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of PW2.
4) In case of State of Himachal Pradesh v. Surinder Mohan & ors. reported in 2000(1) Supreme 466 = AIR 2000 SC 1862, once again considering the question of non examination of the approver by the committing Court under sub-section(4) of Section 306 of the Code of Criminal Procedure and the effect of such non examination on the trial, distinguishing some of the previous judgements of the Apex Court, it was observed that statement of the approver was recorded and same day pardon was granted. However, at that stage other accused were not asked to cross examine him. Case was therefore, committed to the Court of Sessions. During the trial, the approver was examined as PW 29. He was also cross examined by the counsel for the accused. Witnesses for defence were thereafter examined. Finally after hearing arguments, learned Sessions Judge rendered his judgement. It was only during the arguments before the Sessions Court that contention was raised for the first time that procedure prescribed under sub-section (4)(a) of section 306 of the Code of Criminal Procedure was not complied and that therefore, trial was vitiated. In this background, the Apex Court observed that till the argument stage, none of the accused had raised any objection. Acceptance of such object would only promote technical plea which would adversely affect dispensation of justice. Court was therefore of the opinion that in such a case, provisions contained in Section 465 wold come into operation. It was held that non examination of the approver by the Magistrate would not vitiate the trial.
In case on hand however, we are not concerned with such a situation where trial has been completed. Accused have objected to even examination of witness.
5) In case of Sitaram Sao @ Mungeri v. State of Jharkhand reported in AIR 2008 Supreme Court 391, the Apex Court in facts of the case held that there was complete compliance under Section 306 of the Code of Criminal Procedure. State of examination of approver comes only after he has been granted pardon and after pardon, he was examined as witness in presence of accused and he was also cross examined. This case therefore, does not lay down any ratio which can be applied to the facts of the present case.
Culmination of different judicial pronouncements noted above would be that requirement of sub-section(4)(a) of Section 306 is mandatory in nature and noncompliance thereof would result into defective trial. If such a person is permitted to be examined as a witness though order of granting pardon itself may not be irregular or illegal, since requirement of examining the approver as witness comes only after pardon is granted, nevertheless, non examination would result in a situation where recording evidence of such witness before the trial Court would not be permissible.
In the present case, we are concerned with a situation where accused have objected to such a witness being examined during the course of trial even before recording his evidence. Their objection was therefore, required to be upheld. Learned Special Judge committed error in rejecting the application.
I however, cannot lose sight of the provision contained in Section 307 of the Code of Criminal Procedure which are independent powers of the trial Court to grant pardon after the case is committed for trial.
Subject to above observations, the petition is allowed. Impugned order dated 7.8.2007 passed by learned Special Judge, CBI Court, Ahmedabad, is quashed and set aside. Prayer made in the application exh. 201 is granted. In terms of section 306 of the Code of Criminal Procedure, it would not be open for the prosecution to examine said witness during trial. Nothing stated in this order shall come in way of the trial Court in considering the question of granting pardon under section 307 of the Code of Criminal Procedure to the said witness if so applied.
Revision Application is disposed of accordingly.
(Akil Kureshi,J.) (raghu) Top