Madhya Pradesh High Court
Satish Neeraj vs The State Of Madhya Pradesh on 4 September, 2014
Cr.R.No.739/2013
04.09.2014
Shri Prakash Upadhyaya, learned counsel for the applicant.
Shri Pankaj Dubey, learned standing counsel of respondent
No.1 EOW.
Shri Brijendra Mishra, learned counsel for respondent No.2. This revision is listed today for admission, but in the available circumstances with the consent of parties the same is taken up for final hearing.
2. Heard.
3. On behalf of applicant co-accused Satish Neeraj this revision is preferred under Section 397 read with Section 401 of the Code of Criminal Procedure being aggrieved by the order dated 24/01/13 passed by Special Judge (Constituted under the Provisions of Prevention of Corruption Act, 1988), Rewa in Special Case No.1/2008, whereby the application of the respondent No.2 accused namely Kashi Prasad Dubey filed under Section 306/307 of Criminal Procedure Code was allowed and pursuant to it by extending him the 'Pardon' and scored out his name from the accused he was directed to appear and record his deposition as prosecution witness. We are also apprised by the counsel present that in compliance of such direction the deposition of such respondent No.2 has also been recorded by the trial Court and now the case is fixed today for final argument.
4. Applicant's counsel after taking us through the averments of the petition as well as impugned order and other papers placed on the record argued that initially the charge-sheet was filed against the applicant as well as respondent No.2 and other co-accused and on assessing the same the charges of offences punishable under Prevention of Corruption Act and also of Indian Penal Code were framed against all the accused including the applicant and respondent No.2. They abjured the guilt, on which trial was directed and in the said trial after examining various witnesses of the prosecution the aforesaid impugned application under Section 306/307 of Criminal Procedure Code was filed on behalf of respondent No.2 with a prayer to give him pardon and permit him to appear as prosecution witness in support of prosecution in the matter. In continuation such counsel said that the aforesaid prayer was opposed before the trial Court on behalf of respondent No.1 prosecution, but on consideration contrary to the objection of the prosecution agency and in the lack of the consent of prosecution in support of contention of the respondent No.2 stated in the application, so also without following the procedural process to consider such application, the same was allowed under the wrong premises and thereby after giving the pardon to the respondent No.2 in the matter he was directed to appear as prosecution witness and his deposition was recorded as stated above. In continuation he said that the observation, finding and the approach of the trial Court in the impugned order allowing such application is apparently contrary to law of the land laid down by the Apex Court in the matter of Lt. Commander Pascal Fernandes Vs. State of Maharashtra & Others, reported in AIR 1968 SC 594 = (1968) 1 SCR 695 = 1968 Cr.L.J. 550. He by referring Para-15 of the cited judgment, said that the impugned order has been passed without considering such law of land laid down by the Apex Court, which requires reappreciation and reconsideration on the question for giving the pardon to the respondent No.2 in the matter and in such premises prayed to set aside the impugned order of trial Court allowing the aforesaid application of respondent No.2 and remitted back the matter to the trial Court to reconsider and decide such application afresh in the light of aforesaid cited case by allowing this revision.
5. On the other hand Shri Pankaj Dubey, learned standing counsel of the respondent No.1 EOW after perusing the aforesaid cited case of the Apex Court submitted that he does not have any objection if on consideration the case is remitted back to the trial Court to decide afresh on the question involved in the light of the said cited case. He also point out that the trial Court has considered the matter keeping in view some other citation of the Apex Court, but the aforesaid cite case was not taken into consideration in any manner while deciding the issue involved in the application of respondent No.2. He also said that in the present revision he has clarified the position by filing affidavit of Superintendent of Police, EOW that the prayer of the respondent No.2 made in the impugned application was seriously opposed on behalf of respondent no.1 before the trial Court. He also said that after passing the impugned order for one reason or another in the lack of any instruction from the department no revision has been preferred against such order on behalf of respondent No.1.
6. Shri Brijendra Mishra, learned counsel for respondent no.2 firstly argued that the impugned order has not been passed against the applicant, hence the same is not going to prejudice any right of the applicant, thus the applicant has no locus standi to challenge the impugned order by way of this revision. Only the Authority of respondent No.1 has locus standi to challenge such order and in such premises prayed to dismiss this revision on this technical ground only.
7. On asking him whether he wants to make any submission on merits of the matter in the light of aforesaid cited case, on which after perusing such cited decision he said that in the available circumstances he has filed the impugned application by mentioning elaborate facts and circumstances of the case for giving the pardon to the respondent No.2 and permit him to examine himself as prosecution witness and in the available facts and circumstances on consideration in the interest of prosecution by allowing such application he has been given pardon by the trial Court. He further said that after giving the pardon to the applicant his deposition has already been recorded as prosecution witness and on setting aside the impugned order and remitting back the matter to the trial Court may create some complications and in such circumstances the valuable rights of respondent No.2 may seriously affected and prejudiced and prayed for dismissal of this revision. He further said that if in the light of the aforesaid cited case if the impugned order is set aside, then the matter be remitted back to the trial Court with a direction to decide his impugned application afresh after extending the elaborate opportunity of hearing to this respondent again.
8. Having heard the counsel for the parties at length keeping in view their arguments we have carefully gone through the petition as well as the impugned order alongwith other papers placed with the record and copy of charge-sheet available on record. It is true that initially the charge-sheet was filed against the applicant as well as against respondent No.2 and other co-accused of the case for their prosecution under the provisions of the Prevention of Corruption Act as well as of the Indian Penal Code and subsequent to filing of charge-sheet on its assessment the charges punishable under the aforesaid Act and Code were framed against the applicant as well as against respondent No.2 and other co-accused. They abjured the guilty, on which trial was proceeded, in which after recording the deposition of some prosecution witnesses on behalf of respondent No.2 co-accused the impugned application for giving him pardon and examine him as prosecution witness in support of prosecution, was filed.
9. It is apparent from the impugned order that any application to give pardon to respondent No.2 was not filed on behalf of respondent No.1 State Authority. In such premises in view of the cited case Lt. Commander Pascal Fernandes (Supra) before considering such application, the requisite necessary formalities were also not carried out by the trial Court. It was necessary for the trial Court if the application was not filed on behalf of State authorities. It is also apparent from the impugned order that inspite of opposing the impugned application of respondent No.2 on behalf of State authorities the same allowed without considering the objections of the State authority in speaking manner.
10. In the available circumstances before giving any finding on the sustainability of the impugned order, we deem it fit to reproduce the concerning abstract of the aforesaid cited case Lt. Commander Pascal Fernandes (Supra).
11. In the cited case Lt. Commander Pascal Fernandes (Supra) in Para-15 the Apex Court held as under :-
"In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to 'offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8(2) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several may be tendered pardon. But even where the accused directly applies to the Special Judge, he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prossecuting joins tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the public prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon silo motu at the request of the accused. This practice is to be avoided. Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail. It will accordingly be dismissed."
12. Keeping in view the aforesaid law laid down by the Apex Court if the impugned order is examined, then it is apparent that without following the process shown in the cited case and inspite of opposition of the State authorities the impugned application of respondent No.2 for giving him pardon in the matter has been allowed. It is apparent from the impugned order that in compliance of direction of the aforesaid decision of the Apex Court prima facie enqiury was also not carried out by the Trial Court before giving benefit of pardon to the respondent No.2. So in such premises the impugned order allowing the application of respondent No.2 is apparently perverse and against the proprietary of law and the same deserves to be set aside with a direction to remand the matter to the trial Court to decide the impugned application afresh in the light of aforesaid cited case after extending opportunity of hearing to all parties of the matter.
13. So far as arguments of respondent No.2 that after passing the impugned order pursuant to that the respondent no.2 has already been examined by the trial Court as prosecution witness is concerned, we are of the considered view that if on the strength of impugned order which was passed without taking into consideration the aforesaid decision of the Apex Court, if the respondent No.2 has been examined by the trial Court, then it does not mean that such process should be regularized by dismissing this revision contrary to the spirit of the law laid down by the Apex Court in the aforesaid cited case. It is made clear that if on reconsideration the impugned application is allowed by the trial Court, then such evidence may be appreciated by the trial Court under its discretion for adjudication, but if such application on reconsideration after hearing the parties in the light of aforesaid citation is dismissed, then in that circumstances the case will relate back to the date of impugned order on which the impugned application was allowed and in such premises such evidenced deposition of respondent No.2 would not be treated to the part of the record. So in such premises the arguments of the counsel of respondent No.2 advanced in this regard has not appealed us to dismiss this revision by affirming the impugned order.
14. So far as objection of the counsel of the respondent No.2 regarding entertainability of this revision at the instance of the applicant co-accused of the case is concerned, such argument has also not appealed us because firstly the applicant being co-accused if any other co-accused is permitted to examine as prosecution witness against him after giving the pardon, then such thing may prejudice the right of the applicant and in such premises the applicant being aggrieved party has right to approach this Court revision.
15. Apart this, we are also of the view that any irregularity, illegality or anything against the proprietary of law committed by the trial Court or subordinate Court in passing the order in question and same has come in the knowledge of this Court, then this Court has jurisdiction to rectify such error. So in such premises also this revision would be entertained and adjudicated under the revisional jurisdiction of this Court enumerated under Section 397 read with Section 401 of Code of Criminal Procedure.
16. In view of aforesaid discussion in the light of aforesaid cited case by allowing this revision in part the impugned order allowing the impugned application of respondent No.2 filed under Section 306/307 of Criminal Procedure Code is set aside and the case is remitted back to the trial Court with a direction to decide the impugned application of respondent No.2 afresh after extending the opportunity of hearing to all parties of the case. If the applicant and other parties of the case want to file any reply of such application, then such opportunity or some reasonable period be also given to them before hearing the argument and adjudication on such application and subject to order on the application proceed further in the matter for adjudication.
17. The applicant's counsel is directed to submit certified copy of this order before the trial Court within three working days from obtaining the same from the copying section of this Court. Office is also directed to send the copy of this order to the trial Court within 7 days to comply the aforesaid direction.
18. The revision is allowed in part as indicated above.
Certified copy as per rules.
(U.C. Maheshwari) (Sushil Kumar Gupta)
JUDGE JUDGE
AS/