Karnataka High Court
Central Bureau Of Investigation vs Shiva Murthy S K on 4 February, 2026
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04 TH
DAY OF FEBRUARY, 2026
R
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
CRL.RP NO.1519 OF 2022
BETWEEN:
CENTRAL BUREAU OF INVESTIGATION
(ANTI-CORRUPTION BRANCH),
NO.36, BELLARY BRANCH,
GANGANAGAR, BENGALURU-560032.
...PETITIONER
(BY SRI PRASANNA KUMAR P, SPL.PP WITH
SRI RAHUL KRISHNA REDDY P, ADVOCATE)
Digitally
signed by AND:
PRAMILA G V
Location:
HIGH COURT 1. SHIVA MURTHY S K,
OF S/O LATE S KARIBASAPPA,
KARNATAKA AGED ABOUT 45 YEARS,
R/A NO.8/19, 3RD B MAIN,
8TH CROSS,
SOMESHWARA NAGARA,
GKVK POST, BENGALURU-560064.
2. P KESHAVAMURTHY,
S/O PATELLAPPA Y K,
AGED ABOUT 33 YEARS,
R/A NO.12-59,
1ST MAIN, 6TH CROSS,
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MARUTHINAGAR,
BENGALURU-560033.
...RESPONDENTS
(SRI GANESH KUMAR R, ADVOCATE FOR R2,
R1 - SERVED)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE ORDER DATED 07.11.2022 PASSED BY THE LEARNED
XXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
PRINCIPAL SPECIAL JUDGE FOR CBI CASES, BENGALURU
(CCH-4) IN CRL.MISC.NO.7812/2022 ARISING OUT OF
SPL.C.C.NO.18/2017 AND CONSEQUENTLY ALLOW THE
REVISION PETITION FILED BY THE PROSECUTION U/S.308
OF THE CODE.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08TH JANUARY, 2026 AND
COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
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CAV ORDER
The following three questions fall for consideration in
this Criminal Revision Petition:
(i) Whether the certificate issued by the Public
Prosecutor under Section 308(1) of the Code of
Criminal Procedure, would result in automatic
cancellation/forfeiture of the pardon tendered
under Section 306 of the Code?
(ii) Whether examination of the accused turned
approver under Section 306(4) of the Code of
Criminal Procedure is mandatory in case the
pardon is tendered by the Special Court which is
competent to take cognizance of the offence and
to try the accused?
(iii) Whether the respondents (accused No.3 and 4)
have violated the terms and conditions of the
pardon?
2. This Criminal Revision Petition is filed assailing
the order dated 07.11.2022, passed in Crl.Misc.No.7812/
2022, by which the petitioner's application under Section
308 of the Code of Criminal Procedure ('Code') to
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prosecute the respondents of this petition, (the accused
No.3 and 4 in RC 6(A)/2016) was rejected.
3. The application under Section 308 of the Code,
filed in Spl.C.C.No.18/2017 on the file of the XXI Sessions
Judge & Principal Special Judge for CBI Cases, Bengaluru,
is numbered as Crl.Misc.No.7812/2022.
4. The petitioner, the Central Bureau of
Investigation (CBI for short), filed the aforementioned
application to prosecute PW-1 and PW-2 (accused No.3
and 4 turned approvers) for not having complied with the
terms and conditions of the order granting pardon.
5. The XVII Additional Chief Metropolitan
Magistrate, Bengaluru, on 24.08.2016, had recorded the
confession statements of accused No.3 and 4 under
Section 164(1) of the Code. The said accused, during the
course of the investigation, volunteered to be approvers
and sought pardon. On an application under Section 306
of the Code, the Special Judge granted pardon to the said
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accused, subject to the condition that accused No. 3 and 4
should make a full and true disclosure and depose the
truth before the Court.
6. The respondents (who were by then cited as
CW-37 and CW-38 in the charge sheet) were examined as
PW-1 and PW-2 by the prosecution. Both witnesses were
cross-examined by the remaining accused.
7. When the case was posted for final arguments,
the Public Prosecutor filed an application under Section
308(1) of the Code to prosecute the respondents, alleging
that the approvers had violated the terms of the pardon.
The respondents contested the application.
8. The Trial Court framed two points for
consideration as follows:
(i) Whether the prosecution establishes that the
respondents have not complied with the
terms of the pardon?
(ii) What order?
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9. The Trial Court, after hearing both sides,
dismissed the petition.
10. Initially, the application under Section 308(1) of
the Code was not accompanied by a Public Prosecutor's
certificate, and the respondents opposed the application
on that count. Subsequently, the Public Prosecutor's
certificate was filed, and the Trial Court proceeded to hear
the matter, holding that the defect is cured. The Trial
Court is right in holding that such an omission is curable.
11. The Special Court considered the statements of
PW-1 and PW-2 and concluded that the respondents have
not violated the terms of the pardon. Hence, the CBI is
before this Court assailing the said order.
12. Before going into the merits of the petition, it is
necessary to record certain facts:
(a) The prosecution had registered an FIR in
R.C.No.06(A)/2016 on 17.03.2016 against one Shri
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Narasimhaswamy S.G. and Shri N. Sundaram, the
Superintendents of Customs at the Import Section
of Customs at Bengaluru International Airport. The
case was registered for offences under Sections 7,
8, 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (for short 'PC
Act') and Section 120B of Indian Penal Code (for
short 'IPC').
(b) The prosecution alleged that accused No. 1 and 2,
the Customs officials, were demanding and
accepting illegal gratification from Clearing House
Agents, and accused No. 3 and 4, the employees of
two Clearing House Agents, collected the bribe from
other agents and paid the same to accused No. 1
and 2 for clearing files for the release of imported
goods.
(c) During the investigation, accused No. 3 and 4 (the
present respondents) under Section 164(1) of the
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Code before the XVII Additional Chief Metropolitan
Magistrate admitted the accusations.
(d) Accused No.3 and 4 filed applications under Section
306(1) of the Code to be the approvers and sought
pardon. The CBI filed a memo supporting the said
application to treat accused No.3 and 4 as
approvers.
(e) Acting on the application under Section 306(1) of
the Code, the Special Judge granted the pardon on
the conditions which are extracted below:
"They must make full and true disclosure of the
whole of the circumstances within their knowledge
relative to the offence and to every other person
concerned in the commission of the offences whether
as principal or abettor.
Accused no.3 and 4 are also cautioned that if it is
disclosed that they have willfully concealed anything
essential or giving false evidence and not complied
with the condition on which the tender of pardon was
tendered and accepted by them or for any other
offences of which they appears to have been guilty in
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connection with the same matter and also for the
offence of giving false evidence."
(f) Later in the trial, accused No.3 and 4 were
examined as PW-1 and PW-2. In cross-examination,
according to the prosecution, the said approvers
supported the case of the defense.
(g) In this background, the application under Section
308(1) of the Code was filed to revoke the pardon
and the same was dismissed. The said order of
dismissal is questioned in this petition.
13. Learned counsel appearing for the petitioner
raised the following contentions:
(i) While tendering pardon, conditions were imposed on
the accused No.3 and 4 that they should make full
and true disclosure of the whole circumstances
within their knowledge relative to the offence and
the persons concerning the offence, whether as
principal or abettor. However, the evidence of PW-1
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and PW-2 would demonstrate that the respondents
have not complied with the terms and conditions of
the pardon;
(ii) The respondents supported the prosecution's version
in their statements under Section 164(1) of the
Code. However, in cross-examination, they took a
'U-turn' from their statements and supported the
case of the defence, and thereby violated the terms
and conditions of the pardon;
(iii) The statements in the cross-examination of the
respondents are contrary to the statements made
under Section 164(1) of the Code; as such, case is
made out for revoking pardon under Section 308 of
the Code;
(iv) The Trial Court, on a certificate issued by the Public
Prosecutor under Section 308(1) of the Code,
should have proceeded to hold the trial against the
approvers, as the revocation of pardon is automatic
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upon the issuance of such a certificate by the Public
Prosecutor.
14. Learned counsel appearing for the respondents
raised the following contentions:
(i) The revocation of pardon is not automatic upon a
certificate being filed by the Public Prosecutor. The
Court has to hear the approvers before passing
orders on a certificate for revocation of pardon;
(ii) In the Section 164(1) statements, examinations-in-
chief, and cross-examinations, the respondents
narrated the truth as known to them; merely
because the statements in cross-examination did
not support the prosecution's case, that does not
mean that the approvers violated the terms of the
pardon;
(iii) In the examinations-in-chief, and cross-
examinations, the respondents answered specific
questions where there was no scope for further
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elaboration. In such a situation, if the answers do
not tally for any reason, that by itself is not a
ground to say pardon conditions were violated;
(iv) It is quite possible that the prosecution's theory
itself is false and what is stated in the cross-
examination is true; therefore, the prosecution
cannot file an application under Section 308 merely
because the evidence is not to their liking;
(v) If any explanation was needed after cross-
examinations, the petitioner could have re-
examined the witnesses, but the prosecution chose
not to do so.
15. Learned counsel for the petitioner has relied on
the following judgment in support of his contentions:
State of Maharashtra vs. Abu Salem Abdul Kayyum
Ansari and Others1.
16. Learned counsel for the respondent has relied
on the following judgments in support of his contention:
1
(2010) 10 SCC 179
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(i) Emperor v. Kothia Navalya Bhil2
(ii) Dip Chand v. Emperor3
(iii) Faguna Kanta Nath v. State of Assam4
(iv) Ex.Sepoy Hardhan Chakrabarty v. Union
of India (UOI) and Anr.5
(vi) Madan Raj Bhandari v. State of
Rajasthan6
(vi) B.H. Narashima Rao v. Government of
Andhra Pradesh7
(vii) Rammi Alias Rameshwar vs. State of
Madhya Pradesh8
(viii) Directorate of Enforcement vs. Rajiv
Saxena9
17. Section 308(1) of the Code reads as under:
"Where, in regard to a person who has accepted a
tender of pardon made under section 306 or section
307, the Public Prosecutor certifies that in his opinion
such person has, either by wilfully concealing
anything essential or by giving false evidence, not
complied with the condition on which the tender was
2
1906 SCC Online Bom 50
3
1934 SCC Online Lah 264
4
1959 SCC Online SC 41
5
AIR 1990 SC 1210
6
1970 SCR(1) 688
7
1999 Supp(4) SC 704
8
AIR 1999 SC 3544
9
2020 SCC OnLine Del 719
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made, such person may be tried for the offence in
respect of which the pardon was so tendered or for
any other offence of which he appears to have been
guilty in connection with the same matter, and also
for the offence of giving false evidence:
Provided that such person shall not be tried jointly
with any of the other accused:
Provided further that such person shall not be tried
for the offence of giving false evidence except with
the sanction of the High Court, and nothing
contained in section 195 or section 340 shall apply
to that offence."
(Emphasis supplied)
18. Section 308(1), which provides for the trial of
an approver who violates the terms of the pardon, uses
the expression "...may be tried for the offence...". In
other words, the Court has the discretion as to whether
the approver has to be tried or not. Of course, the
discretion is not unfettered or absolute. The Court
exercising the discretion has to apply its mind to be prima
facie satisfied as to whether a case is made out for
revocation of pardon.
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19. The reasons are as follows:
(i) The process of tendering and accepting pardon is
through a judicial order, which confers a certain
concession/relief to the approver. Once the pardon
is accepted, he is no longer the accused and is not
liable for punishment for the alleged offence. Thus,
the pardon which is a judicial order cannot be
revoked simply by the issuance of a certificate by
the Public Prosecutor. While the Public Prosecutor is
enabled to issue a certificate, the pardon cannot be
revoked unless the Court forms an opinion on prima
facie consideration that there is a violation of
conditions.
(ii) If the Court were to take the view that a mere
certificate of the public prosecutor is sufficient to
revoke pardon, it would have the effect of
unilaterally setting aside a judicial order. While the
accused is entitled to establish later that he did not
violate the terms, the contention that pardon is
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revoked solely on a certificate does not align with
the scheme of Sections 306 to 308 of the Code,
which aims to secure the best evidence. Unilateral
revocation without hearing the approver may
dissuade such persons from coming forward to be
the approvers, defeating the purpose of Section
306.
(iii) If the Parliament intended revocation to be
mandatory on the mere issuance of a certificate
without a hearing, it would likely have used the
expression "...shall be tried..." instead of "...may be
tried..." in Section 308.
20. Thus, this Court is of the view that for the
Public Prosecutor to urge for the forfeiture of pardon and a
consequent trial, must point out that a prima facie case; at
that stage, the approver is also required to be heard.
However, the scope of the inquiry is limited to:
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(i) Whether the certificate prima facie points out
violations of the conditions of the tender of
pardon?
(ii) Whether the evidence recorded under Sections
164(1) or 306(4) of the Code, or during trial,
"prima facie appear to be" lacking a true and
full disclosure of the circumstances relative to
the offence, principal or abettor within the
person's knowledge?
21. The Delhi High Court in Directorate of
Enforcement vs. Rajiv Saxena10 held that an application
under Section 308 with a certificate, is not tenable if the
evidence of the approver has not been recorded under
Section 306(4). The High Court upheld the Special Judge's
power to judicially review the certificate and reject the
prayer for revocation and a trial.
22. Learned counsel for the petitioner urged that
the Apex Court in State of Maharashtra vs. Abu Salem
(supra) held that pardon stands forfeited on a certificate
10
2020 SCC OnLine Del 719
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issued by the Public Prosecutor. The Court has considered
said judgment; however, in that case, the Court was not
determining if revocation was automatic or if the approver
must be heard before proceeding to hold trial against the
approver. It held that if the approver suppresses material
facts and a certificate is issued, the pardon is lifted, but
the specific procedural requirement of hearing the
approver was not the primary question in the said case.
On the procedure for hearing an application/
certificate under Section 308 of the Code:
23. The Court does not entirely agree with the
procedure adopted by the Trial Court in converting the
application under Section 308 into a miscellaneous
petition. While forfeiture is not automatic, the elaborate
procedure adopted before this Court was uncalled for.
24. The Trial Court registered the application as a
separate miscellaneous petition, which is not a legal
requirement. Although a person whose pardon is recalled
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must be tried separately for the main offence, the
application/certificate under Section 308 itself does not
require a separate trial.
25. On an application under Section 308, the Court
is only required to consider the prima facie materials after
hearing both sides. After such hearing, if the certificate
points out a violation, then it must be accepted and
further procedures under Section 308 must follow. If prima
facie case is not made out the application is rejected, the
accomplice remains a prosecution witness.
Whether the Special Judge is required to examine
the accused/approver when the accused accepts the
tender:
26. In this case, evidence was recorded by the
Metropolitan Magistrate under Section 164(1). It is settled
law that if a Magistrate tenders pardon, the examination
under Section 306(4) is mandatory before committing the
matter.
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27. In the instant case, the evidence was recorded
on 24.08.2016 under Section 164(1). However, the
Magistrate did not tender the pardon. Because the case
registered under the Prevention of Corruption Act, the
application under Section 306 was filed before the Special
Court under the said Act. Under Section 5(2) of the
Prevention of Corruption Act read with Section 307 of the
Code, the Special Judge has the power to tender pardon
on the same conditions.
28. Although respondents argue the Court did not
examine the accused under Section 306(4), the Apex
Court in Deivendran vs. State of Tamil Nadu11 held
such examination is not required if the Court trying the
offence tenders pardon after committal. In the instant
case, the Court taking cognizance is also the Court
empowered to try the case. Thus, Section 307 of the code
would apply. The expression "same conditions" in Section
307 refers to Section 306(1) and, not the procedures in
11
AIR 1998 SC 2821
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the subsequent sub-sections. Thus, the Special Judge was
not required to examine the approvers under Section
306(1) of the Code. However, it is to be mentioned that
there is no bar under Section 307 of the Code to examine
the accused turned approver under Section 306(4) of the
Code. The Special Court after tendering the pardon may
ask the Magistrate to examine the accused turned
approver under Section 306(4) of the Code. Adopting such
procedure appears to be a prudent approach.
Whether the evidence on record calls for revocation
of pardon and warrants a trial against the
approvers.
29. The Court has examined the case with
reference to the statements of approvers recorded under
Section 164(1), the examinations-in-chief, and the cross-
examinations.
The relevant portion of the evidence of PW-1, Shiva
Murthy S.K., under Section 164(1) of the Code, is as
under:
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"Qæ«Ä£À¯ï ¥ÀæQæAiÀiÁ ¸ÀA»vÉAiÀÄ PÀ®A 164 (1) gÀr ªÉÄîÌAqÀ
ªÀåQÛAiÀÄ
vÀ¥ÉǦàUÉ ºÉýPÉ!
¥Àæ±Éß 2: xxx
GvÀÛgÀ: xxx. ©¯ï D¥sï JAmÉæøïUÀ¼À£ÀÄß ¥Á¸ï ªÀiÁr PÉÆqÀ®Ä
¥Àæw ©¯ï D¥sï JAnæUÉ gÀÆ. 50 gÀAvÉ C°è£À
¸ÀÆ¥ÀjAmÉAqÉAlìUÀ¼ÀÄ PÀ¯ÉPïÖ ªÀiÁqÀÄwÛzÀÝgÀÄ. ªÉÄ. fãÁ
¯Áf¹ÖPïì£À CdÄð£ï JA§ÄªÀ£ÀÄ SÁAiÀÄA DV Jgï EArAiÀiÁ
¸Áåmïì ±Éqï£À°è ¨ÉÃgÉ ¹JZïJ UÀ½AzÀ ºÀt PÀ¯ÉPïÖ ªÀiÁr
¸ÀÆ¥ÀjAmÉAqÉAmïìUÀ½UÉ PÉÆqÀÄwÛzÀÝ£ÀÄ. ¸ÀzÀj CdÄð£ï E®èzÁUÀ
CªÀgÀÄUÀ¼ÀÄ £À£ÀUÉ MvÁÛAiÀÄ ªÀiÁr ºÀt PÀ¯ÉPïÖ ªÀiÁr PÉÆqÀĪÀAvÉ
ºÉüÀÄwÛzÀÝgÀÄ. ªÉÄ.rJZïJ¯ï ¯Áf¹ÖPïì¤AzÀ ¥Àæw ¢ªÀ¸À ¸ÀĪÀiÁgÀÄ
40 jAzÀ 50 ©®ÄèUÀ½zÀÄÝ CªÀÅUÀ¼À£ÀÄß ¥Á¸ï ªÀiÁqÀ®Ä vÉÆAzÀgÉ
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ªÀiÁr PÉÆqÀÄwÛzÉÝ£ÀÄ. £Á£ÀÄ FUÉÎ ¸ÀĪÀiÁgÀÄ 3-4 wAUÀ¼ÀÄUÀ½AzÀ
ºÀt PÀ¯ÉPïÖ ªÀiÁr PÉÆqÀÄwÛzÀÝ£ÀÄ. ¥Àæw ¨Áj ¸ÀĪÀiÁgÀÄ gÀÆ.5000
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EArAiÀiÁzÀ PÉñÀªÀ ªÀÄÆwð UÉÆvÀÄÛ PÉñÀªÀ ªÀÄÆwð C°è AiÀiÁªÀ
¹JZïJUÀ¼ÀÄ JµÀÄÖ ©¯ï ¥Á¸ï ªÀiÁrPÉÆAqÀÄ ºÉÆÃVgÀÄvÁÛgÉAzÀÄ
£ÉÆÃr £À£ÀUÀÆ ºÁUÀÆ CdÄð£ï¤UÀÆ w½¸ÀÄwÛzÀÝ£ÀÄ. PÉ®ªÀÅ ¨Áj
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¸ÀzÀj «µÀAiÀĪÀ£ÀÄß PÉñÀªÀ ªÀÄÆwð MAzÀÄ aÃnAiÀÄ°è
§gÉzÀÄPÉƼÀÄîwÛzÀÝ£ÀÄ."
30. In the application under Section 308 (Paragraph
No.6), the following statements of Shiva Murthy
(Respondent No. 1) are referred to:
"It is true to suggest that CBI Officers have advised
me to give a statement to suit this case; as such, I
have given the statement as per their say."
"It is also true as I was given an assurance that I will
not be shown as an accused and will be set free;
therefore, I have not disclosed the said fact to the
Magistrate and gave the statement before the
Magistrate as per the say of the CBI."
31. In Paragraph No.7 of the said application, the
statement of Keshavamurthy (Respondent No. 2) is noted:
"It is true to suggest that CBI officers pressured
me to give statement according to their
convenience: as such, I have given the statement
before the CBI."
"I have not at all collected any amount relating to
this case."
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32. Referring to the aforementioned statements, it
is urged that the conditions of the pardon have been
violated.
Respondent No.1, in his statement under Section
164(1), stated that after collecting the amount (from
Custom House Agents), he used to give it to Officers of the
Customs Department, which is extracted as follows:
¥Àæ±Éß 2: xxx
GvÀÛgÀ: xxx
£Á£ÀÄ M¦à CdÄð£ï E®èzÁUÀ ºÀt PÀ¯ÉPïÖ ªÀiÁr
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ºÀt PÀ¯ÉPïÖ ªÀiÁr PÉÆqÀÄwÛzÀÝ£ÀÄ. ¥Àæw ¨Áj ¸ÀĪÀiÁgÀÄ
gÀÆ.5000 PÀ¯ÉPïÖ DUÀÄwÛvÀÄÛ. ¸ÀzÀj PÉ®¸ÀPÉÌ CªÀgÀÄUÀ¼ÀÄ £À£ÀUÉ
AiÀiÁªÀÅzÉà ºÀt PÉÆqÀÄwÛgÀ°®è. ºÀt PÀ¯ÉPïÖ ªÀiÁrzÀ £ÀAvÀgÀ
¸ÀAeÉ E§âgÀ°è AiÀiÁgÀÄ ¹UÀÄvÁÛgÉÆà CªÀjUÉ PÉÆqÀÄwÛzÉÝ£ÀÄ.
33. In paragraph No.5 of the examination-in-chief,
PW-1 (respondent No. 1) has stated as under:
"On 14.3.2016, I have collected Rs. 50 per bill of
entry from CHAs and in all I collected Rs. 5,000. On
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the end of the day, I have returned the Rs. 5,000
collected to A1."
34. In the cross-examination, the witness has
stated as under:
"20. xxx It is true to suggest that the CBI officers
advised me to give a statement to suit this case,
as such, I have given the statement as per their
say. It is true to suggest that the CBI officers also
advised me to get Anticipatory Bail from this court.
It is true to suggest that the CBI officers have
themselves took me to the Magistrate Court and
asked me to give a statement before the
Magistrate as required under Sec. 164 of Cr.P.C. It
is true to suggest that prior to that I was not at all
aware of the location of the said Magistrate Court.
It is true to suggest that at the time of recording
my statement before the Magistrate Court, the CBI
police who took me to the said court were waiting
at the door of the said Magistrate Court. It is also
true to suggest that before giving the statement,
the CBI police gave me my statement and asked
me to give the same statement before the
Magistrate. It is true to suggest that I have given
the statement before the Magistrate like a parrot.
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21. xxx I had collected this amount of Rs. 5,000/-
on 14.3.2016 and paid it to Sri N. Sundaram and
Sri Narasimha Swamy S.G., Superintendents, on
their direction. It is true to suggest that CW-11
Arjun was collecting the said amount and he knows
much about the collection of the said amount. It is
true to suggest that I have not given a statement
before the CBI officer naming any particular
officer."
35. From the aforementioned statements in the
examination-in-chief and the cross-examination, it is
evident that PW-1/respondent No. 1 has stuck to his
statement that he collected the bribe amount from Custom
House Agents and paid it to Customs officials.
36. The relevant portion of the statement under
Section 164(1) of the Code, by respondent No.2 (Pw-2,
Keshavamurthy P) is as under:
"Qæ«Ä£À¯ï ¥ÀæQæAiÀiÁ ¸ÀA»vÉAiÀÄ PÀ®A 164 (1) gÀr ªÉÄîÌAqÀ
ªÀåQÛAiÀÄ
vÀ¥ÉǦàUÉ ºÉýPÉ!
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Xxxx
¥Àæ±Éß 3: ¤£ÀUÉ £ÀgÀ¹AºÀ¸Áé«Ä ºÁUÀÆ ¸ÀÄAzÀgÀªÀiï UÉÆvÉÛÃ?
GvÀÛgÀ: £À£ÀUÉ £ÀgÀ¹AºÀ¸Áé«Ä ºÁUÀÆ ¸ÀÄAzÀgÀªÀiï UÉÆvÀÄÛ CªÀgÀÄ
zÉêÀ£ÀºÀ½îAiÀÄ CAvÀgÀ gÁ¶ÖæÃAiÀÄ «ªÀiÁ£À ¤¯ÁÝtzÀ°ègÀĪÀ PÀ¸ÀÖªÀiïì
D¦üøï£À°è ¸ÀÆ¥ÀjAmÉAqÉAmïìUÀ¼ÁV PÉ®¸À ªÀiÁqÀÄwÛzÁÝgÉ. ¸ÀzÀj
£ÀgÀ¹AºÀ¸Áé«Ä ºÁUÀÆ ¸ÀÄAzÀgÀªÀiï gÀªÀgÀ£ÀÄß £Á£ÀÄ
£ÉÆÃrgÀÄvÉÛãÉ. DzÀgÉ CªÀgÀÄ £À£ÀUÉ AiÀiÁªÀÅzÉà PÉ®¸ÀªÀ£ÀÄß
ªÀ»¹gÀ°®è.
¥Àæ±Éß 4: ¤£ÀUÉ CdÄð£ï ºÁUÀÆ ²ªÀªÀÄÆwð UÉÆvÉÛÃ?
GvÀÛgÀ : ªÉÄ. fãÁ CAqï PÀA¥À¤AiÀÄ CdÄð£ï ºÁUÀÆ
ªÉÄ.rJZïJ¯ï ¯Áf¹ÖPïì£À ²ªÀªÀÄÆwð £À£ÀUÉ UÉÆvÀÄÛ Kgï
EArAiÀiÁ ¸Áåmïì£À ±Éqï £À°è ¹JZïJUÀ½AzÀ ¥Àæw ©°èUÉ gÀÆ.50
gÀAvÉ PÀ¯ÉPïÖ ªÀiÁr ªÉÄ. fãÁ CAqï PÀA¥À¤AiÀÄ CdÄð£ï
¸ÀÆ¥ÀjAmÉAqÉAlìUÀ¼ÁzÀ £ÀgÀ¹AºÀ¸Áé«Ä ºÁUÀÆ ¸ÀÄAzÀgÀªÀiïUÉ
PÉÆqÀÄwÛzÀÝgÀÄ. CdÄð£ï E®èzÁUÀ ªÉÄ. rJZïJ¯ï ¯Áf¹ÖPïì£À
²ªÀªÀÄÆwð Jgï EArAiÀiÁ ¸Áåmïì£À ±Éqï £À°è ¹JZïJ UÀ½AzÀ
ºÀt PÀ¯ÉPïÖ ªÀiÁr ¸ÀÆ¥ÀjAmÉAqÉAlìUÀ½UÉ PÉÆqÀÄwÛzÀÝ£ÀÄ.
CdÄð£ï ºÁUÀÆ CdÄð£ï E®èzÁUÀ ²ªÀªÀÄÆwð CªÀgÀÄUÀ¼ÀÄ
ºÉÆgÀUÀqÉUÉ ºÉÆÃUÀ¨ÉÃPÁzÁUÀ JµÀÄÖ ¹JZïJUÀ¼ÀÄ JµÀÄÖ ©¯ï
UÀ¼À£ÀÄß ¥Á¸ï ªÀiÁrPÉÆr¹PÉÆAqÀÄ ºÉÆÃVgÀÄvÁÛgÉAzÀÄ
£ÉÆÃrPÉƼÀÄîwÛgÀÄ JAzÀÄ £À£ÀUÉ ºÉüÀÄwÛzÀÄÝ CzÀgÀAvÉ £Á£ÀÄ
MAzÀÄ ¥ÉÃ¥Àgï£À°è ©¯ï ¥Á¸ï ªÀiÁr¹PÉÆAqÀÄ ºÉÆÃzÀ
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¹JZïJUÀ¼À ºÉ¸ÀgÀÄ ºÁUÀÆ ¥Á¸ï ªÀiÁr¹PÉÆAqÀÄ ºÉÆÃzÀ
©¯ïUÀ¼À ¸ÀASÉåAiÀÄ£ÀÄß §gÉzÀÄPÉƼÀÄîwÛzÀÝ£ÀÄ. CdÄð£ï CxÀªÁ
²ªÀªÀÄÆwð AiÀiÁgÀÄ ºÉýgÀÄwÛzÀÝgÉÆà CªÀgÀÄ §AzÀ £ÀAvÀgÀ D
aÃnAiÀÄ£ÀÄß PÉÆqÀÄwÛzÉÝ£ÀÄ. £Á£ÀÄ ¹JZïJUÀ½AzÀ ºÀt PÀ¯ÉPÀÖ
ªÀiÁqÀÄwÛgÀ°®è"
(Emphasis supplied)
37. The relevant portion of the examination-in-
chief of PW2 is extracted as under:
"3. The said Arjun (CW.11) and Shivamurthy
(PW.1) used to ask me to do their work, when they
used to go for lunch or Tea, during the leisure
hour. I used to make the entry of the bills
submitted and cleared by the different CHAs in the
absence of CW.11 and PW.1.
5. The CW.11 and PW.1 were collecting RS.50 per
bill, of entry from the concerned CHAs and they
used to deliver the said amount to the
Superintendent of Customs."
38. The relevant portion of cross examination of
PW2 is extracted hereunder:
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"12. It is true to suggest that I have not at all
collected any amount relating to this case M/s
Capital Shipping Pvt Ltd., have removed me from
their office after 3 days of 16.03.2016. xxx
It is true to suggest that the CBI officer had
accompanied me to the Magistrate Court while I
was giving statement before the Magistrate. It is
true to suggest that at that time, the Magistrate
has asked me whether I had accompanied by any
police, I answered that no police has accompanied
me at that time. It is true to suggest that I have
given false statement before the Magistrate. It is
not true to suggest that I am giving false evidence
to support the accused. It is true to suggest that
as I was not having any job and as I was afraid of
CBI officer and, my livelihood, I had given the
statement before the CBI officer. It is true to
suggest that as per the say of CBI officer being
afraid of them, I have given the same statement
before the Magistrate as a parrot.
14. It is true to suggest that accused were not
working the week prior to 14.03.2016 in the said
office. It is true to suggest that as I have to save
from Job and life, I have given an application for
being treated as pardon. It is true to suggest that
the CBI officers have assured me that they will let
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me free if I give the statement as required by
them.
15.xxx It is true to suggest that the CW.12 to
CW.32 have not at all given me any amount on
any day. It is true to suggest that we used to
collect amount to help our colleagues who met
with an accident or died in an accident. Xxxxx."
39. PW-2/respondent No.2 in his statement under
Section 164(1) of the Code has stated that he did not
collect the money from Custom House Agents.
40. In the examination-in-chief, both PW-1 and PW-
2 supported the case of the prosecution. PW-1 stated that
on 14-03-2016, he collected a sum of ₹5,000 from
customs house agents and handed it over to accused No.
1. This version was maintained even in cross-examination.
41. PW-2 in the examination-in-chief and the cross
examination has stated that he did not collect any money
from customs house agents and did not hand over money
to anyone, but that he had maintained records of the
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number of bills cleared by the Customs officials. He too
adhered to this version in cross-examination.
42. From the application under Section 308, it is
noticed that the prosecution is contending that
respondents have urged that respondents have falsely
stated that their statement under Section 164(1) of the
Code is not voluntary.
43. It is to be noticed that when the statement
under Section 164(1) of the Code was recorded, the
application for tendering the pardon had not yet been
filed. The Magistrate did not record the statement under
Section 164(1) of the Code with a view to tender the
pardon. Admittedly, no conditions were imposed while
recording the statement under Section 164(1) of the Code.
44. Hence, if the statement under Section 164(1)
(which was recorded before the tendering of the pardon)
does not disclose all facts concerning the offence or the
principal or abettor, it does not amount to a violation of
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the terms and conditions of the pardon, as those
conditions were imposed subsequent to the statement
under Section 164(1) of the Code.
45. It is to be noticed that pardon was tendered by
the Special Judge and not by the Magistrate who recorded
the statement under Section 164(1). Moreover, under
Section 306(1) of the Code, the accused-turned-approver
is required to disclose facts relating to the commission of
the offence or facts concerning the principal or abettor.
The prosecution is complaining about a subsequent event,
viz., the alleged false statement regarding the pressure or
inducement by the CBI officials to confess to the
commission of the offence.
46. In the cross-examination, Pw1 and Pw2 for the
first time revealed that they gave confessional statement
under Section 164(1) of the Code at the instance of the
CBI officials. The question is whether the said statements
made in the cross-examination can be termed as a
violation of the terms and conditions of the pardon.
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47. The Court is of the view that the said
statements in the cross-examination, that the CBI officials
pressurized or induced accused No.3 and 4 to make a
confessional statements under Section 164(1) of the Code,
even if true, cannot be termed as violation of the terms of
the pardon. The reason is that, if the said statements are
true, then the accused/approvers have narrated the truth
and cannot be penalized for it.
48. In the event that such inducement or pressure
was not there for making the confessional statement, then
evidence in the cross-examination that accused were
pressurized and induced to confess under Section 164(1)
of the Code may amount to false evidence. If the approver
is to be tried for giving false evidence, then the
prosecution must seek the leave of the High Court as
provided under the proviso to Section 308(1) of the Code.
Admittedly, the petitioner has not sought such leave.
49. Thus, on reconsideration of the evidence and
the statement before the Court, the Court is of the view
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that the Pw1/respondent No.1 has stuck to the statement
made under Section 164(1) of the Code and in the
examination-in-chief when it comes to the facts relating to
collecting money and paying the same to the Customs
Officials.
50. Likewise, PW.2 in his cross examination has
stuck to the stand that he used to count and make notes
of the bills cleared and used to hand it over to PW.1. PW.2
has maintained the same stand that he has not collected
the amount and paid to the Customs Officials.
51. This being the position, in the facts and
circumstances of this case, merely because the approvers
did not disclose about the alleged inducement or pressure
by the officials to give a statement under Section 164(1)
of the Code does not amount to violation of the terms of
the pardon.
52. New facts revealed in the cross-examination,
ipso facto may not amount to violation of the terms of the
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pardon. The cross-examination is not just confined to the
facts which are testified in the examination-in-chief but
also, extend to the facts which are relevant for
adjudication. It is apparent from the provision which reads
as under:
Section 138 of The Indian Evidence Act, 1872 is
extracted as under:
"138.Order of examinations.- Witnesses shall
be first examined-in-chief, then (if the adverse
party so desires) cross-examined, then (if the
party calling him so desires) re-examined.
The examination and cross-examination must
relate to relevant facts, but the cross-examination
need not be confined to the facts to which the
witness testified on his examination-in-chief.
Direction of re-examination.-The
re-examination shall be directed to the explanation
of matters referred to in cross-examination; and, if
new matter is, by permission of the Court,
introduced in re-examination, the adverse party
may further cross-examine upon that matter."
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(Emphasis supplied)
53. In view of the wide scope of cross-examination,
every new statement made in the cross-examination by
the approver cannot be termed as violation of the terms
and conditions of the pardon. Whether, such new
statements made in the cross-examination amount to
violation of the terms of the pardon depends upon the
facts of each case.
54. As rightly urged by the learned counsel for the
respondents, on the new facts which are revealed in the
cross-examination, the prosecution has not sought re-
examination. The learned counsel for the respondent has
placed reliance on the judgment of the Apex Court in
Rammi Alias Rameshwar (supra), where it is held that
re-examination under Section 138 of the Indian Evidence
Act, 1872 is not confined to clarification of ambiguities in
the cross-examination. The observations in paragraphs
No.16 and 17 of the said judgment are relevant and
extracted hereunder:
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"16. The very purpose of re-examination is to
explain matters which have been brought down in
cross-examination. Section 138 of the Evidence Act
outlines the amplitude of re-examination. It reads
thus:
"138. * * *
Direction of re-examination.- The re- examination
shall be directed to the explanation of matters
referred to in cross-examination; and if new
matter is, by permission of the Court, introduced in
re-examination, the adverse party may further
cross-examine upon that matter."
17. There is an erroneous impression that
re-examination should be confined to clarification
of ambiguities which have been brought down in
cross-examination. No doubt, ambiguities can be
resolved through re-examination. But that is not
the only function of the re-examiner. If the party
who called the witness feels that explanation is
required for any matter referred to in cross-
examination he has the liberty to put any question
in re-examination to get the explanation. The
Public Prosecutor should formulate his questions
for that purpose. Explanation may be required
either when ambiguity remains regarding any
answer elicited during cross-examination or even
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otherwise. If the Public Prosecutor feels that
certain answers require more elucidation from the
witness he has the freedom and the right to put
such questions as he deems necessary for that
purpose, subject of course to the control of the
court in accordance with the other provisions. But
the court cannot direct him to confine his questions
to ambiguities alone which arose in cross-
examination."
(Emphasis supplied)
55. The prosecution could have re-examined the
approvers on the new facts narrated in the cross-
examination. That is not done.
56. The Court has also noticed the answer to the
question put by the learned Special Judge who asked PW.1
as to whether there was any difficulty in disclosing the fact
that the CBI Police was waiting at the door while recording
statement before the Magistrate. To the said question, the
witness has answered stating that he had no such
difficulty to disclose the fact.
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57. As already noticed, the terms of the pardon
were not negotiated and accepted when said statement
was made before the Magistrate. Hence, the contention
that suppression of alleged pressure or inducement by the
police while recording Section 164 (1) statement does not
amount to violation of the conditions of the pardon.
58. And as already discussed, the statement
relating to pressure and inducement by the CBI officials if
is a false statement, then, to prosecute for such false
evidence, the prosecuting agency has to seek leave of the
High Court which admittedly, is not sought.
59. Before parting, the Court must place on record
the valuable assistance rendered by the learned Counsel
for both sides.
60. Hence the following:
ORDER
(i) Petition is dismissed.
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(ii) Since, the petitioner has not sought the leave of the Court to prosecute the approvers on the premise that approvers have given false evidence; the liberty is reserved to the prosecution to file such petition as advised in law.
(iii) It is made clear that this Court has not expressed any opinion as to whether the statements made by the approvers are false or not. Such question has to be decided on an application, if any, filed seeking leave to prosecute the approvers for giving false evidence.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE BRN/CHS