Gujarat High Court
Central vs N on 7 October, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
CR.MA/10311/2010 65/ 65 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10311 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
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 ?
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CENTRAL
BUREAU OF INVESTIGATION - Applicant(s)
Versus
N
K AMIN & 3 - Respondent(s)
=========================================================
Appearance
:
MR KTS
TULSI, SR. COUNSEL WITH M/s. MAHEEN PRADHAN, SALVI AND
MR YN
RAVANI for
Applicant(s) : 1,
MR JAGDISH K RAMANI for Respondent(s) : 1,
MR
ABHESINH S RANA for Respondent(s) : 1,
PUBLIC PROSECUTOR for
Respondent(s) : 2,
MR SB VAKIL, SR. COUNSEL WITH MS ARCHANA R
ACHARYA for Respondent(s) : 3,
MR BB NAYAK, SR. COUNSEL WITH MR
PARTHIV A BHATT for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 07/10/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present petition under Section 482 of Cr.P.C., preferred by CBI, is directed against the order dated 26.8.2010 passed by the learned Additional Chief Judicial Magistrate, Special Court for CBI No.2 (hereinafter referred to as 'the learned Magistrate' for the sake of convenience) in Application below Exh.53 preferred by the respondent No.3 and 4 herein (original Accused No.1 and 5 respectively), whereby the learned Magistrate has made a reference to this Court under Section 395 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C./Code' for the sake of convenience) to decide the question as to whether the application made by Shri N.K. Amin under Section 306 is constitutionally legal or not.
The short facts relevant for the purpose of the present petition are as under :-
In connection with the encounter of Sohrabuddin Sheikh and the elimination of his wife Kauserbi, which was being investigated by the State Police (vide FIR-CR No.5/2005), the Apex Court entrusted the investigation to CBI, which took over the investigation on 1.2.2010 and registered the case being R.C. No.4(S)/2010-MUM as per the decision of the Apex Court reported at 2010(2) SCC, 200. It appears that thereafter CBI investigated into the matter and filed charge-sheet on 23.7.2010, but as per CBI it is a preliminary charge-sheet and the further investigation is still in progress.
As per CBI, the Apex Court has directed to complete the investigation within a period of three months.
It appears that on 26.7.2010 Shri N.K. Amin
- original accused No.12 preferred an application Exh.8 under Section 306 of Cr.P.C., for grant of pardon and to be considered as an approver and he declared in the application that he is ready and willing to give statement under Section 164(2) of Cr.P.C., so as to become an approver in the above case and desired to disclose true and material facts pertaining to the offence. It appears that on the very day i.e. 27.7.2010 the application Exh.9 was also submitted by A-12 praying before the learned Magistrate that since he is in the same Central Jail together with the other accused, he may be assaulted by the other accused or the attempt shall be made to kill him and, therefore, he may be transferred at other place in the judicial custody. On 27.7.2010, the learned Special Public Prosecutor for CBI by submitting an application Exh.14 declared before the Court that there is danger of life of A-12 in the judicial custody and, therefore, the Court may pass order as deem fit, so that the accused is not harmed and as the accused is in judicial custody, the Court has power to shift him to other jail. On 10.8.2010, the learned Special Public Prosecutor as well as Dy. Special Prosecutor, CBI SIT in reply to the application of A-12 under Section 306 of Cr.P.C., declared as under:-
"That in view of the application filed by Mr.N.K. Amin - accused No.12 for grant of pardon, it is respectfully submitted that the application be allowed on the strict condition of his making 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 commission of offence."
Hence, on the above condition, the application be allowed.
On the very day, the application was also made by A-12 to the learned Magistrate stating that he has submitted the application Ex.8 for tendering pardon and as the applicant wants to make full and true disclosure relative to the offence under Section 164(1) read with Sub-section (5) in support of the application under Section 306 of Cr.P.C., for tendering pardon to him, he be permitted to give statement under Section 164(2) of Cr.P.C., in connection with the offence. The learned Special P.P. For CBI made endorsement as under:-
"It is admitted that the statement of the accused be recorded in accordance with the power under Section 164 of Cr.P.C."
It appears that thereafter A-1 (Shri D.G. Vanzara) and A-8 (Shri N.H. Dabhi) submitted joint reply on 13.8.2010 to the application Exh.8 (Application of A-12 under Section 306 of Cr.P.C.) and contended that the investigation by CBI in the present case is hell-bound to foist false and fabricated evidence on the accused persons and, therefore, in view of the ground stated in the reply, the application made by A-12 be rejected.
It appears that thereafter, a further reply to the Application Exh.8 was submitted by A-1 and A-5 before the learned Magistrate being Exh.53 contending, inter alia, that "if Section 306 is interpreted to mean that the learned Magistrate should act solely on the opinion of the Public Prosecutor and not take upon himself the task of determining the propriety of tendering pardon instead of acting on judicial grounds and in exercise of his own judicial discretion, it would add insult to injury to the judiciary, which is first involved u/s 306 in the function reserved for the executive of collecting evidence and then told to follow what the executive says."
It was also contended that "the object of Section 306 for buying the testimony of the person specified therein, who is more often than not an accused as in this case, by paying the price of pardon runs counter to Articles 14, 19, and 21 of Constitution of India and Rule of law."
It was submitted that "Section 306 is violative of Article 19(1)(d) of Constitution of India and void." It was also submitted that "Section 306 is a fraud on Article 20(3) of the Constitution of India", etc. The learned Magistrate, it appears that though there was no prayer for making any reference to the High Court, the learned Magistrate vide order below the said reply on the same day kept the matter for hearing. It appears that thereafter, the learned Magistrate found that it will not be in the interest of justice if the matter is decided between A-12 and the Court and as the co-accused are directly to be affected thereby, their submissions are required to be heard in the interest of justice. It was also observed by the learned Magistrate that the decision upon which the reliance was placed by the learned Counsel for the other co-accused falls in the arena of constitutional validity, which this Court cannot decide, nor can reject and, therefore, the only option is to refer the matter on the aspect as to whether Section 306 of Cr.P.C., is constitutionally valid or not. Therefore, the impugned order has been passed. Under these circumstances, the present petition by CBI, an Investigating Agency before this Court under Section 482 of Cr.P.C., for invoking inherent power of this Court.
We have heard Mr.K.T.S. Tulsi, learned Sr. Counsel appearing with, Mr.Maheen Pradhan, Mr.Salvi and Mr.Yogesh Ravani, learned Counsel for CBI. We have also heard Mr.S.B. Vakil, learned Sr. Counsel appearing with Ms.Archana Acharya for Shri D.G. Vanzara - respondent No.3 and Mr.B.B.Nayak, learned Counsel with Mr.Bhatt for Respondent No.4.
We may record that we shall deal with the contentions of the learned Counsel for both the sides to the extent found relevant for the purpose of deciding the subject matter of the present petition only.
Before we proceed to examine the other aspects, it would be worthwhile to refer Section 482 of Cr.P.C., which reads as under:-
482.
Saving of inherent power of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."
On a plain reading of the above Section, it is clear that this Court has inherent power to make such orders as may be necessary :-
(a) To give effect to any order of this Court; or
(b) To prevent abuse of the process of any Court; or
(c) Otherwise to secure the ends of justice and no provisions of Cr.P.C., shall be read to limit or effect the aforesaid inherent powers of this Court.
Keeping in view the aforesaid, matter deserves further consideration.
As the matter pertains to Section 306 of Cr. P.C., the same would be relevant for the purpose of deciding the present matter. Section 306 of Cr.P.C., reads as under :-
"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 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."
The Sub-section (1) of Section 306 shows with a view to obtain the evidence of any person, who is supposed to have been directly or indirectly concerned or is privy to the offence may be granted pardon by the learned Magistrate at any stage of the investigation or inquiry or trial of the offence, but such pardon would be on condition that such person has to make 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 the Principal or abettor. Sub-section (2) speaks for applicability of the Section to any offence, which includes any offence punishable with imprisonment, which may extent to seven years or more serious sentence. Sub-section (3) provides that every Magistrate, who tenders pardon under Sub-section (1) has to record the reason for so doing and whether the tender was or was not accepted by the person to whom it was so made. Sub-section (4) provides that the person accepting the tender of pardon made under Sub-section (1) shall be examined as a witness.
Sub-section (5) provides that where a person has accepted the tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the learned Magistrate taking cognizance shall, without making any further inquiry commit, the case for the trial to the Court of the Sessions, if the offence is triable exclusively by that Court. We may record that in the present case we are concerned with the situation where the learned Magistrate may be required to commit the case to the Court of Sessions, therefore, the other aspects would not be much relevant for the present case.
The aforesaid speaks for the power vested to the learned Magistrate to grant pardon and it is required for the learned Magistrate, while granting pardon to record his reasons for so doing, meaning thereby the power to grant pardon vests to the learned Magistrate as per the Scheme of the Act i.e., the Judicial officer and not any Executive Investigating into the matter or collecting evidence or investigation. Secondly, the section itself speaks for reasons to be recorded by the learned Magistrate for so doing i.e. for grant of pardon, which speaks that what has weighed to the learned Magistrate is to be recorded by way of reasons, which would be a part of the record in the proceedings of the case to be ultimately tried by the Court of Sessions.
The crucial aspect, which may arise for the consideration in the present case under Section 306 of Cr.P.C., is as to whether the other co-accused i.e. the accused other than the one, who is to be granted pardon if the person, who is to be granted pardon is, an accused, have any say in the matter or not. Section itself does not speak for hearing to the other co-accused and it only speaks for the exercise of the power by the learned Magistrate for grant of pardon. Right of the co-accused or any accused, who is to be or is charge-sheeted and/or tried in any Criminal Court for the evidence collected or may be collected by the prosecution or the Investigating Officer, as such would begin only when he has to be arrested/charged and he is to be tried based on such evidence.
The procedure as contemplated by Cr.P.C., would begin from the information received by the Police Officer in any cognizable offence, starting from Section 154 of Cr.P.C. In the process of investigation thereafter for collection of evidence pertaining to any crime, the accused therein cannot be said to have any adverse effect, since the investigation is a domain of investigating machinery with the principles to be observed by him that the offender must be booked and innocent person should not be harassed. It is for the investigating machinery to impartially conduct investigation to explore the truth and collect the evidence in the manner that real offender can be booked and conviction can be pressed at the time of conclusion of trail by producing the evidence before the competent Court. If in the course of investigation any accused is to be arrested, such may result into affecting the personal liberty and at this stage he may have say in the matter, but to the extent of his own personal liberty and not for the other co-accused or for the roles of other co-accused for interrogation or after interrogation. Thereafter, in the next stage when any accused concerned is charge-sheeted he will have say in the matter inasmuch as of defending the case against the offences, for which he is charged. Even after the charge-sheet when any question arises for induction of any of the accused in connection with the same offence or for any other offence, the other co-accused would have no say in the matter, unless and until the remand is prayed for himself. Even at the time of filing of charge-sheet, he would be entitled for all papers and evidence, which may be collected by the prosecution and he will have all right to defend the case at the time of trial. The evidence of the witnesses so collected by the prosecution is to be produced before the Court and at this stage, the accused concerned has right to cross-examine the witnesses for the purpose of defending of his case and thereafter also when a particular accused is called upon to make statement as against the evidence led by the prosecution and produced before the Court. There could be numerous stages beginning from the registration of FIR against any accused person till the charge-sheet is filed and after filing of charge-sheet till the charge is framed and after the charge is framed, till the trial is concluded and the final judgement is pronounced etc. In the present case, we are not concerned with the situation at the time of the consequence as may arise during the course of the trial, but are concerned with the situation after filing of the charge-sheet with the learned Magistrate, but before the case is committed to the Court of Sessions, and in any case, before the charge is framed against all the accused, which may lead to trial. It is true that the charge-sheet is already filed and the matter is before learned Magistrate but the fact remains that the case is not committed by the learned Magistrate to the Court of Sessions. Therefore, it can be said that it is a case where the investigation is made as reflected in the charge-sheet, but the learned Magistrate is yet to decide on the aspects of the commission of case to the Court of Sessions and at that stage one of the accused A-12 has invoked the power of the learned Magistrate under Section 306 of Cr.P.C. Further at the stage of exercise of power under Section 306 of Cr.P.C., as in the present case the learned Magistrate has yet to exercise the power for grant of pardon and the statement by way of full disclosure of true and correct facts are yet to be made by A-12 and the Court has also yet to examine the aspect as to whether A-12 has made true and correct disclosure of the facts by way of compliance to the condition for grant of pardon or not. At this stage, it appears to us that it is essentially a matter between the accused, who has applied for pardon under Section 306 of Cr.P.C., and the prosecution or the investigating machinery and the Court i.e. the learned Magistrate. The other co-accused will have no say in the matter and the reason being if the pardon is granted, and the statement of the accomplice witness is recorded, then the other co-accused will have a right of cross-examination to the person making the statement. Further, after the statement is so recorded including the cross-examination and the prosecution relies upon the said statement by way of an evidence against the other co-accused at the time of arrest or remand of any person or other co-accused or at the time when co-accused are charged or the said person is examined as accomplice witness in the trial before the Court of Sessions, the other co-accused may have say and will have right of cross-examination to0 for such accomplice witness by way of defence. Since all other co-accused will have full right of defence including that of cross-examination of the accomplice witness if the prosecution intends to rely upon the evidence of such witness, the other accused will have no say in the matter till then and if they have no say in the matter, the question of hearing the other co-accused at the stage when the learned Magistrate has to exercise the power under Section 306 of Cr.P.C., would not arise at all.
At this stage, we may extract certain observations of the Apex Court in its decision reported in the case of "Ranadhir Basu v. State of W.B.", reported in 2000(3) SCC, 161 and more particularly the observations made at para 7, the relevant of which reads as under :-
"7. ... As pointed out by this Court in that case the object is to provide an opportunity to the accused to show to the Court that the approver's evidence at the trial is untrustworthy in view of the contradictions or improvements made by him during his evidence at the trial. Considering the object and purpose of examining the person accepting tender of pardon as a witness is thus limited. The proceeding which takes place before the Magistrate at that stage is neither an inquiry nor a trial.
Therefore, the submission of the learned counsel that Sudipa should have been examined as witness in open Court and not in the chamber and that while she was examined the Magistrate should have kept the accused present and afforded to them an opportunity to cross-examine Sudipa cannot be accepted. The phrase 'examination of a witness' does not necessarily mean examination and cross examination of that witness. What type of examination of a witness is contemplated would depend upon the object and purpose of that provision. Section 202, Cr. P.C. also contemplates examination of witness yet it has been held, considering the object and purpose of that provision, that the accused has no locus standi at that stage."(Emphasis supplied) We may also refer to another decision of the Delhi High Court, in the case of M. M. Kochar v. The State, reported in AIR 1969 Delhi 21 and more particularly the observations made at para 17, which reads as under :-
"17. ...
The tender of pardon and its acceptance by the person concerned is a matter entirely between the Court concerned and the person to whom it is made and if the tender of a pardon is accepted by the accomplice concerned, the only obligation placed upon the prosecution is to examine him as a witness in the case. He will then be subjected to cross-examination by the co-accused and it will be for the co-accused to show by such cross-examination that the statement that is made by the accomplice is a false statement. ..."
We may also refer to another decision of Madras High Court in case of Senthamarai v. S. Krishnaraj & Anr." reported in 2002 Criminal Law Journal, page 2375 and the observations made at para 12, 13, 14, and 15, which reads as under :-
It is settled law as laid in Faqir Singh Vs. Emperor MANU/PR/0053/1938, M.M Kochar v. State MANU/DE/0158/1968 that the co-accused cannot question the act of granting pardon by the Court to one of the accused, as that is an internal matter of administration, which cannot affect the position of the accused or the approver.
The tender of pardon and its acceptance by the person concerned is a mailer entirely between the court concerned and the person to whom it is made. If the tender of pardon is accepted by the accomplice concerned, the only obligation placed upon the prosecution is to examine him as a witness in the case.
Whether the statement made by the accused seeking for pardon is voluntary or not is to be decided by the Court alone. If it is the case of the other accused that the statement of the approver is wrong and belated, it has to be established by subjecting the approver to cross-examination that the statement made by him was a false statement.
The pardon proceeding which takes before the Magistrate is neither an enquiry nor a trial in which an opportunity must be given to the other accused to show to the court that the statement of the accused seeking pardon is not true. Only during the course of trial, the opportunity will be given to the accused to show to the court that the approver's evidence at the trial is untrustworthy in view of the contradictions or improvements made by him by allowing the accused to cross-examine."
In the case of "Commander Pascal Fernandes, Lt. v. State of Maharashtra and Ors.", reported in AIR 1968 SC 594 at para 11, the observations were made by the Apex Court as under
:-
"11. ... There is no provision for the recording of reasons for so doing, nor is the Special Judge required to furnish a copy to the accused."
It is true that now in view of the provisions of Section 306 of Cr.P.C. 1973, the reasons are to be recorded, but the position for the say of the other co-accused in the matter of exercise of power under Section 306 of Cr.P.C., would remain the same.
The attempt was made by the learned Counsel for A-1 and A-5 to contend that the other co-accused are required to be heard before the Court exercising the powers and the learned Counsel also relied upon the decision of Patna High Court in the case of "Prabhat Ranian Sarkar and Ors. v. The State of Bihar", reported in 1974 Criminal Law Journal, 957 can hardly be considered as the ratio for deciding the principal only because the direction was issued by the Patna High Court before parting with the matter that the District Magistrate shall, while granting pardon, hear the accused person also, because it is a judicial proceeding. In our considered view, in view of the reasons recorded hereinabove, such passing observations by the Patna High Court cannot be termed as a ratio laid down by the Patna High Court and further in view of the reasons recorded by us herein above, we cannot agree on the point that at the stage of grant of pardon, the other co-accused will be required to be heard before the learned Magistrate exercising the power under Section 306 of the Cr.P.C.
The reliance was also placed by the learned Counsel for A-1 and A-5 upon the decision of the Apex Court in the case of State of U.P. v. Kailash Nath Agarwal, reported in AIR 1973 SC 2210 and more particularly the observations made at para 21 and 23 by contending that the revision preferred by the other co-accused, challenging the order of the learned Magistrate in grant of pardon was found to be competent by the Apex Court and, therefore, it was contended that this Court may consider that the co-accused will have the right to say in the matter when the power is to be exercised under Section 306 of the Cr.P.C., by the learned Magistrate. We are afraid such contention can be accepted at a stage where the learned Magistrate has yet to examine the question as to whether the pardon should be granted or not. The right read for invoking the revisional power of the Court of the Sessions or may be of this Court under Cr.P.C., would stand on a different footing after the order is passed by the learned Magistrate then the stage at which the power is yet to be exercised by the learned Magistrate under Section 306 of Cr.P.C. Hence, the reliance is ill-founded and, therefore, of no help to A-1 and A-5.
In view of the aforesaid, when the co-accused have no say in the matter, when the learned Magistrate is to exercise the power under Section 306 of Cr.P.C., the contention of the learned Counsel of A-1 and A-5 that the other co-accused are also required to be heard before this Court decides the matter on the aspects of examining the legality and validity of the order passed by the learned Magistrate would result into without substance and, therefore, cannot be accepted.
The aforesaid leads us to examine the question of scope and ambit of exercise of power by the learned Magistrate under Section 306 of Cr.P.C. We have while interpreting section 306 of Cr.P.C., made observations, but the pertinent aspect is that even if the co-accused has no say in the matter and at the stage of grant of pardon, the matter is essentially between the person seeking pardon, the prosecution or investigating machinery/investigating officer - State Government or the Central Government, what will be the role of the Court and whether the power so vested to the Court i.e., the judiciary could be said as arbitrary or unreasonable or that such powers so vested with the Court are with sufficient safeguard with the mechanism provided under Cr.P.C., or not.
In order to consider the aforesaid aspects, reference to the case law would be relevant. In case of Laxmipat Choraria and others v. State of Maharashtra, reported in AIR 1968 SC 938, it was observed at paragraphs 7 and 23, inter alia, as under :-
"7. ... In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection The section is further fortified by Article 20 (3) which says that no person accused of any offence shall be compelled to be a witness against himself. This article protects a person who is accused of an offence and not those questioned as witnesses. A person who voluntarily answers questions from the witness box waives the privilege which is against being compelled to be a witness against himself because he is then not a witness against himself but against others. Section 132 of the Indian Evidence Act sufficiently protects him since his testimony does not go against himself. In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of a co-accused. There too the accused waives the privilege conferred on him by the article since he is subjected to cross-examination and may be asked questions incriminating him."
"23. The last contention that there has been discrimination and violation of Articles 14 and 20 is without substance. Reliance was placed on S. G. Jaisinghani v. Union of India, AIR 1987 SC 1427 that the absence of arbitrary power is the first essential of the rule of law and here there is room for selecting one out of several accused to lead accomplice evidence. Reference was made to other cases of this Court where unrestrained power of selection without guide-lines was held to offend Article 14. But the case of the accomplice evidence is different. Section 337 of the Code of Criminal Procedure has already been held not to offend Art. 14 and the matter of taking accomplice evidence outside Section 337 by using Section 494 or otherwise is not very different. We do not hold that there was any breach of the Constitution in receiving Ethyl Wong's evidence. To hold otherwise would shut out accomplice evidence completely."
(Emphasis supplied) In case of "Sardar Iqbal Singh v. State (Delhi Administration)" reported at 1977(4) SCC, 536 at para 6, it was, inter alia, observed the relevant of which reads as under
:-
"6. ... It is clear from the scheme of S. 337 that what is required is that a person who accepts a tender of pardon must be examined as a witness at the different stages of the proceeding. Where, however, a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the trial could be tested, which would have been available to the accused had the proceeding been initiated in the court of a Magistrate who under Sub-sec. (2-B) of S. 337 of the Code is required to send the case for trial to the Special Judge after examining the approver. But we do not find anything in Sub-sec. (2-B) of S. 337 to suggest that it affects in any way the jurisdiction of the Special Judge to take cognizance of an offence without the accused being committed to him for trial. Sub-section (2-B) was inserted in S. 337 in 1955 by Amendment Act 26 of 1955. If by enacting Sub-sec. (2-B) in 1955 the legislature sought to curb the power given to the Special Judge by S. 8 (1) of the Criminal Law Amendment Act, 1952, there is no reason why the legislature should not have expressed its intention clearly. Also, the fact that the approver's evidence cannot be tested against any previous statement does not seem to us to make any material difference to the detriment of the accused transgressing Article 14 of the Constitution. The Special Judge in any case will have to apply the well established tests for the appreciation of the accomplice's evidence. This Court in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay, (AIR 1974 SC 2009) held that the mere availability of two procedures would not justify the quashing of a provision as being violative of Article 14 and that "what is necessary to attract the inhibition of the Article is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other. ......" (Emphasis supplied) In case of "Commander Pascal Fernandes, Lt. v. State of Maharashtra and Ors.", reported in AIR 1968 SC 594 at para 11, 12, 14 and 15, it was observed as under :-
"11. It follows that the powers of the Special Judge are not circumscribed by any condition except one, namely, that the action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also a condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor. The disclosure must be complete as to himself and as to any other person concerned as principal or abettor. ..."
"12. There can be no doubt that the Section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the Section to show that the Special Judge must he moved by the prosecution. He may consider an offer by an accused as in this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this case."
"14. The next question is whether the Special Judge acted with due propriety in his jurisdiction. Here the interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider. Before the Special Judge acts to tender pardon, he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and in relation to the co-accused. What is meant by public policy is illustrated by a case from Public Commission Court (Reg. v. Robert Dunne, (1851) 5 Cox Cr. Cas 507) in which Torrens, J. on behalf of himself and Perrin, J. observed as follows :
"From what I can see of this case, this witness Bryan, who has been admitted as an approver by the Crown is much the more criminal of the two on his own showing :
..........
I regret that this witness, Bryan, has been admitted as evidence for the Crown and thus escaped being placed upon his trial. It is the duty of magistrates to be very cautious as to whom they admit to give evidence as approvers, and they should carefully inquire to what extent the approver is mixed up with the transaction, and if he be an accomplice, into the extent of his guilt."
"15. 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 Judges 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 prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind 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." (Emphasis supplied) The aforesaid decision once again came to be considered by the Apex Court in case of "Jasbir Singh v. Vipin Kumar Jaggi", reported in AIR 2001 SC 2734 and after considering the above referred decision in case of "Commander Pascal Fernandes, Lt. v. State of Maharashtra and Ors.", reported in AIR 1968 SC 594 (supra), at para 19, it was observed as under :-
"19. ... It was not for the Sessions Judge to have considered the possible weight of the approvers evidence, even before it was given. In any case, the evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. But the suspicion may be removed and if the evidence of an approver is found to be trustworthy and acceptable then that evidence might well be decisive in securing a conviction (see Suresh Chandra Bahri v. State of Bihar (1994 AIR SCW 3420 : AIR 1994 SC 2420 : 1994 Cri LJ 3271) (supra). The Sessions Judge could not and indeed should not have assessed the probable value of the possible evidence of the respondent No. 1 in anticipation and wholly in the abstract." (Emphasis supplied) In case of Sitaram Sao @ Mungeri v. State of Jharkhand, reported in AIR 2008 SC 391 at para 34, it was, inter alia, observed by the Apex Court at para, relevant of which reads as under :-
"34. ... The stage of examining the approver comes only after he has been granted pardon and after pardon he was examined as a witness in presence of the accused and also he was cross examined. So there is no illegality in the order and in the procedure adopted by the learned CJM after remand of the case." (Emphasis supplied) Bhopal High Court, in the case of Bhawani Singh v. The State, reported in AIR 1956 Bhopal, 4 (Vo. 43) while interpreting Section 337(3) of Cr.P.C.,, pertaining to the grant of pardon observed at para 3 and 4 observed as under:-
"(3) Section 337(3), Criminal P.C., runs as below:
"Such person (unless he is already on bail) shall be detained in custody until the termination of the trial".
It is true that the nature of any provision, whether discretionary or of a mandatory nature, is not to be construed from the word 'shall' or 'may' used therein. In certain cases the word 'shall' can be regarded not to be of a mandatory nature if on consideration of the enactment as a whole it appears that the discretion was left open for the Court.
But where the provision by itself suggests that the general powers of the Court had been taken away or that there was a prohibition from passing contrary orders, the word 'shall' will be deemed to be of a mandatory nature if on consideration of the enactment as a whole it appears that the discretion was left open for the Court.
But where the provision by itself suggests that the general powers of the Court had been taken away or that there was a prohibition from passing contrary orders, the word 'shall' will be deemed to be of a mandatory nature. In the present case, the Legislature has not only used the word 'shall' but it is preceded by the words 'unless he is already on bail'.
In my opinion S.337(3), Criminal P.C., can be given no other meaning except that an approver already detained in custody, cannot be released on bail for the period the trial has not been concluded. In other words, therefore, even if the termination of the trial takes a long period the approver will have to be detained in custody.
(4) The provisions contained in S.337(3), Criminal P.C., cannot said to be arbitrary or to be unconstitutional. To me, it appears that such a provision was made as a matter of public policy so that the prosecution may not handicapped in the actual trial and at the same time no undue pressure may be put on the approver by either of the parties.
If after the grant of the pardon the approver is released on bail the accused persons can always take up the plea that the confession made by them was not under inducement and consequently was not admissible and could not be used against them. If the approver is released on bail, pressure can be put upon him from both the sides but if he is confined in jail he is so placed that he cannot be approached by the police or by the friends or relations of the accused persons.
To detain the approver in custody for the duration of the trial is thus in his own interest and is necessary in the interest of justice."
Madras High Court, in the case of "T.P. Mohideen v. The State of Madras and Anr., reported in AIR 1965 Madras 461 while considering the constitutional validity of Section 337 as was in the earlier Code prevailing then for grant of pardon observed at para 2 and 3 as under :-
"2.
The first is that S. 387 Cr. P.C. which provides the rule for tendering pardon to an accomplice 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, is a provision which is opposed to all principles of law, criminal jurisprudence and natural justice. Such a provision for tendering pardon to an accomplice for the purpose of securing "King's evidence" as it is commonly known in English Law, has existed for a long time as one of the recognised methods of obtaining evidence in criminal trials, in cases where other methods of obtaining evidence often fail, on the principle that it will be worthwhile to spare one of the several persons concerned in an offence from the consequence of a trial and punishment, if thereby other persons concerned along with him in the offence can be brought to justice. In bringing offenders to justice, there is no question of discrimination or of one offender claiming that he should be treated in the same way as the other, at the stage of investigation.
It will be totally unjustifiable to attack S. 337 Cr. P.C. a provision enacted for the purpose of facilitating the securing of evidence to establish a criminal offence, on the ground that that section favours one accused person, who is prepared to turn King's evidence, at the expense of the other accused. Even an accomplice so selected for the award of pardon, cannot be said to have obtained complete exoneration from guilt. He has to comply with the terms of the undertaking on which pardon had been granted, and in the event of his violating the undertaking, he will, at the discretion of the authorities and on the certificate of the Public Prosecutor, be made to face a trial in the court. Actually, the provision for tendering pardon is extended even beyond the stage of investigation, to the stage of trial under Section 338 Cr. P.C. which provides that any time after commitment, but before judgment is made, the court to which the commitment is made may, with a 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 (as in S. 337 Cr. P.C.) to such a person. But S. 338 is not the section to which reference is made in this writ petition.(3)
The second contention of the learned counsel appearing in this writ petition for the petitioner, is that S. 337 Cr. P.C. offends Art. 14 of the Constitution which states that the State shall not deny to any person equality before the law or the equal protection or the laws within the territory of India. There is no question in the present case of the denial of equal protection to all the accused involved in the case. It is alleged that the petitioner is the third accused, in a criminal case in the court of the Sessions Judge, Madras, where they are being charged for offences of passing off spurious gold articles as genuine gold articles. The grievance of the petitioner appears to be that when there are a number of persons involved in an offence, discrimination within the meaning of Art. 14 would be involved, when one is given pardon under S. 337 Cr. P.C. and the others are prosecuted. This clearly involves a misconception of the scope of Art. 14. This is not a case of a failure to give protection to the accused who are prosecuted. It is a case of refraining from prosecution of one accused for certain reasons enjoined by the statute in the interests of the successful prosecution of certain other persons, and getting the best evidence possible against them. It appears to me that the reference to Art. 14 of the Constitution for this purpose, is wholly otiose."
Accordingly, it was held that in Reference to Article 14 of the Constitution of India for this purpose is wholly otiose.
In view of the aforesaid case law, read with the provisions of the Section it is true spirit, it does appear that the Parliament by the aforesaid provisions has vested power with the Court i.e. Judiciary, learned Magistrate in the present case, whether to grant pardon or not. Therefore, the learned Magistrate while exercising the power has to keep in mind as to whether the accused's testimony as an approver is likely to advance the interest of justice or not. It is true that while arriving at the said decision as per the above referred decision of the Apex Court in the case of "Commander Pascal Fernandes, Lt. v. State of Maharashtra and Ors.", reported in AIR 1968 SC 594 (supra), while considering the aspect as to whether the accused's testimony as an approver is likely to advance the interest of justice, there must be material before the learned Magistrate to show that what the nature of testimony will be. Further, ordinarily it is for the prosecution to opine as to whether the pardon should be granted to a particular accused or not, but it is for the prosecution also to satisfy the learned Magistrate that the tender of pardon will be in the interest of successful prosecution of the offender whose conviction is not easy without approver's testimony. It is only thereafter the learned Magistrate may grant pardon. Further as observed by the Apex Court in the above referred case, it is the duty of the learned Magistrate to be very cautious as to whom the prosecution admit to give evidence as an approver and the prosecution should very carefully inquire to what extent the approver is mixed up with the transaction and if considered be to an accomplice, into the extent of his guilt. It is true that the learned Magistrate while considering the question of grant of pardon may not enter the arena as veritable director of the prosecution, but has to keep in mind the aspect of likely to advance the interest of justice or not. The interest of justice may be achieved if the prosecution is in a position to satisfy the learned Magistrate that the conviction of other offender is not easy without the approver's testimony.
The attempt was made by the learned Sr. Counsel Mr.Tulsi, by relying upon the decision of the Apex Court in the case of "Commander Pascal Fernandes, Lt. v. State of Maharashtra and Ors.", reported in AIR 1968 SC 594 (supra), to contend that if the prosecution joins the request for pardon, the learned Magistrate would be required to grant pardon and further attempt was made to contend that there would be no option but to grant pardon to the said witness. We cannot agree with the contention of the learned Counsel for two reasons; one is that the Parliament has not clothed the power for grant of pardon to the prosecution, but has given power to the Court or the Magistrate concerned. When the power is vested to a judicial officer, it means that even if the accused is seeking pardon under Section 306 and the prosecution supports the application made by the accused seeking pardon, then also the same by itself is not sufficient, but it is for the Court to examine the aspects for exercise of power for grant of pardon may not be as veritable director of the prosecution, but as a judicial authority to advance the interest of justice of that particular case. Secondly, it cannot be said that it leaves no room for the learned Magistrate to decline the grant of pardon in a given case if it is found that the prosecution has joined the request for grant of pardon of the accused with some extraneous consideration other than those for advancement of interest of justice or that it frustrates the interest of justice. Therefore, it can hardly be said that in all cases merely because one of the accused has made the application for grant of pardon under Section 306 of Cr.P.C., and the prosecution has joined the request for grant of pardon without satisfying the learned Magistrate that the approver's evidence would be in the interest of successful prosecution of the other offenders whose conviction is not easy without approver's testimony, the learned Magistrate has to grant pardon. The fact that the Parliament has vested the power to the learned Magistrate i.e. Judiciary to grant of pardon as per the provisions of Code of 1973, means that judicial authority in the system of administration of justice is to decide as to whether the pardon should be granted or not and while taking such decision apart from the stand of the accused concerned, who has applied for pardon and the prosecution, which is to decide the mode and manner of success in the prosecution for conviction, it would be also required to examine as to whether grant of such pardon would result into advancing the interest of justice or not. If in a given case the Magistrate is of the opinion that grant of pardon would not result into advancement of interest of justice he may decline the pardon.
It, therefore, appears that the powers so vested with the Court or the learned Magistrate are with the holy purpose of advancement of the interest of justice and it leaves no vesting or arbitrary power upon him. Not only that, but as per Sub-section (3), the Magistrate is enjoined with the duty to record the reasons so doing and the said provision of Sub-section (3) requiring the learned Magistrate to record the reasons can, on the face of it, be said as ruling out any arbitrariness in exercise of the powers and when the provision of the statute is made for exercising of the power for reasons to be recorded for such purpose, that would mean in furtherance to the principles of natural justice. Further, the exercise of the power by the learned Magistrate can be challenged before the higher forum as per the provisions of the Code and if the higher forum finds that the Magistrate has not exercised the power on the ground germane to the advancement of the interest of justice, but has exercised the power on the ground non-germane to the advancement of the interest of justice, the same can be set at naught by the higher forum. In view of the aforesaid, when the section itself provides for all reasonable care for exercise of the power for grant of pardon upon the learned Magistrate with the mechanism provided under the Code to challenge such decision coupled with the procedure to be adopted by the learned Magistrate as per the above referred decision to permit the other co-accused to cross-examine the accomplish witness in the event the pardon is so granted, it cannot be said that there is any arbitrary power so vested upon the learned Magistrate, nor can it be said that it would adversely affected the other co-accused if the power is so exercised for advancement of interest of justice.
It is by now well settled that merely because the exercise of power by the lower Court is either in contravention to the provisions of the Act or against or is erroneous in law or is arbitrary, would not result into the statute conferring the power as invalid, but such particular action for exercise of the power can be set at naught or interfered with by the higher forum as per the provisions of the Code or as per the provisions of the Constitution of India.
Mr.S.B. Vakil, learned Sr. Counsel appearing for A-1 and A-5 did raise the contention that the allegations against the learned Magistrate made in the petition to the extent that several judgements were cited, and not considered, whereas as per his client, no such judgements were cited. We find that we need not go into such aspects, which would hardly of any relevance, more particularly because even if they were not cited, when it is a question of law, either party to the proceedings can rely upon the same.
The learned Sr. Counsel Mr.Vakil also challenged the maintainability of the present petition and prayed for rejection of the petition on the ground that baseless allegations have been made against the learned Magistrate for non-consideration of the judgements that were cited and that the CBI is not a person in the eye of law, who can independently sue and be sued.
As such on the aspects of allegation we have already made observations and on the aspects of CBI to maintain the present petition, we find that CBI is an investigating agency with the delegated power by the Central Government as per the provisions of Delhi Special Police Establishment Act, 1946 and it has to function as per the Manual. The contention of the learned Counsel Mr.Vakil that unless the CBI itself is a constituted Statutory Body, who can sue and be sued, it cannot file the petition, in our view, is on an ill-premise inasmuch as the principles for maintainability of the petition in a civil law or under Article 226 of the Constitution of India cannot be made applicable on the ground as sought to be canvassed by the learned Counsel Mr.Vakil for the entertainment of the under Section 482 of Cr.P.C. Further, when CBI itself is the investigating and prosecution agency, if it finds that any order of the learned Magistrate under Cr.P.C., is to hamper the case of the prosecution, in any manner, such investigating officer or the prosecution agency are well within their rights to approach this Court under Section 482 of Cr.P.C. Therefore, we find that the judgement upon which the reliance has been placed by Mr.Vakil pertaining to the exercise of power for civil rights under the Contract Act or under Article 226 of the Constitution of India would have no applicability in the present case.
The attempt was also made by Mr.Vakil to contend that this Court before exercise of power under Section 482 of Cr.P.C., may issue notice and hear all the other accused i.e. other than A-1 and A-5, who are represented by him and Mr.Nayak in the present proceedings. He submitted that when it is a matter of exercise of inherent power against the judicial power exercised by the learned Magistrate the principles of natural justice will apply and as no process has been issued by this Court to the other co-accused, the matter may not be heard and finalized by this Court.
We are afraid such contention can be entertained in view of the facts and circumstances of the present case, that too, from the mouth of A1- and A-5, who had replied before the learned Magistrate and as such the learned Magistrate has acted upon their motion.
As observed earlier, as such in the matter of exercise of power under Section 306 of Cr.P.C., the other co-accused will have no say in the matter, but they will have right to cross-examine accomplice witness if the statement has been recorded. Therefore, when the power is not exercised by the learned Magistrate for grant of pardon or otherwise under Section 306 of Cr.P.C., there would hardly be any question of hearing the other co-accused since, in any case, they are not adversely affected. Further, so far as A-1 and A-5 are concerned, this Court at the initial stage had found it proper to hear them, they are heard and and their submissions are considered. Be it noted that it is not in exercise of every judicial power, the parties to the proceedings are required to be heard. The aspect of prejudice is to be taken into consideration for applying the scope and ambit of the principles of natural justice. For example in case of remand application against a particular accused or a bail application of a particular accused or the cancellation of bail of a particular accused, the Court would be required to hear the prosecution and the accused concerned and not the other co-accused even if the judicial power is exercised or the exercise of the judicial power by the learned Magistrate or the trial judge is to be scrutinized by the higher forum. Therefore, we find that the contention lacks merits.
The learned Counsel Mr.Vakil did contend that if the hearing of the other co-accused is excluded when the learned Magistrate is to exercise the power under Section 306 of Cr.P.C., for grant of pardon, the section would run counter to the principles of natural justice and, therefore, the learned Magistrate has rightly referred the matter to this Court for deciding the aspects of constitutional validity.
We are afraid such contention can be accepted when the position of law is clear as observed by us herein above to the extent that the other co-accused will have a right to defend by way of a cross-examination of a accomplice witness, if his statement has been recorded, but will have no say in the matter, when the matter is to be considered by the learned Magistrate for grant of pardon. Therefore, it is not a matter of exclusion of principles of natural justice, but is a matter where the observance of principles of natural justice is provided in the system of administration of justice pertaining to the criminal evidence.
Mr.Vakil did contend that recording of the statement of an accomplice witness by the prosecution is mode of collection of evidence in the investigation of a case. In our view if such is the position there is more reason to decline the consideration of say of the other co-accused in the matter. Further, if the principles of natural justice as per the learned Counsel is to apply to the investigating agency when any evidence is to be collected against a particular accused, then the very purpose of work assigned to the investigating machinery would be redundant and such would result into frustrating the independent and impartial investigation to be made by the investigating agency. Therefore, the said contention cannot be accepted.
Mr.Vakil, learned Sr. Counsel contended that collection of such evidence by the prosecution may violate the rights under Article 20 as well and would also violate Article 21 of the Constitution of India.
In our view the other co-accused will have right to defend if the evidence is used against them. Further, Article 20 of the Constitution operates against the compulsion, if any made and it in no way prohibits the voluntary disclosure. Article 21 of the Constitution provides for deprivation of life or personal liberty without the procedure established by law. It can hardly be said that Cr.P.C., is not a procedure established by law. Therefore, the said contention cannot be accepted.
The examination of the impugned order passed by the learned Magistrate shows that he has misdirected himself on the basic premise that while deciding the question of grant pardon under Section 306 of Cr.P.C., the co-accused are to be directly affected and, therefore, their say is required to be considered. As observed earlier, as per the provisions of Section 306 of Cr.P.C., in the matter of grant of pardon it is essentially a matter between the person, who applies for pardon, the prosecution agency/investigating agency and the Court or the learned Magistrate, as the case may be. The role of the co-accused would come into play only after the pardon is granted and the statement is made by the person, who has been granted pardon for cross-examination. Further, as observed earlier, after cross-examination of the said accomplice witness, if the prosecution relies upon the same at the time of arrest or remand or at trial, the other co-accused will have a right for cross-examination and to defend the case appropriately, if such evidence is to be used against the other co-accused and in this manner as per the inbuilt mechanism in the process of investigation of the crime, and hence, the interest of co-accused is sufficiently protected. Therefore, it cannot be said that any prejudice would be caused to them or their rights are affected thereby. Further, the learned Judge is right in observing that whether A-12, who has applied for pardon is making voluntary disclosure without there being any desire to get undue benefits is an aspect, which Court may be required to examine while considering the question of grant of pardon considering the question for advancement of the interest of justice, after hearing prosecution, but thereby it cannot be said that for taking decision of the said aspect the say of the other co-accused is required to be taken into consideration. Such, on the contrary, may result into going beyond the scope of judicial scrutiny under Section 306 of Cr.P.C., The learned Magistrate has also misdirected himself in observing that while deciding the question of making A-12 as accomplice witness it would not be in the interest of justice, if the matter is decided between the said accused i.e. A-12 and the Court and, to consider the say as the co-accused and the complainant side, who are to be directly affected thereby. As observed earlier, the complainant side is to be heard together with A-12, who has applied for pardon by the Court, but so far as the co-accused are concerned as observed earlier, they will have right of cross-examination to the accomplice witness if his statement is recorded before the learned Magistrate and that itself would be in the interest of justice, but unfortunately the learned Magistrate has travelled beyond the Section 306 by considering the additional right to make submission of the co-accused. The learned Magistrate has also misdirected himself on the aspects that as co-accused will have right of cross-examination, but their representation or say is also required to be considered, which, in our view, goes beyond the scope of exercise of the power by the learned Magistrate. The learned Magistrate, without there being any valid basis, has observed that application made under Section 306 of Cr.P.C., is constitutionally not valid and there can be breach of Article 14, 19, 20, and 21 of the Constitution of India. In our view, as per the reasons recorded by us and more particularly the observations made by the Apex Court on the aforesaid aspects the view expressed by the learned Magistrate not only run counter to the system of administration of justice in connection with the crimes, but may also run counter to the observations made by the Apex Court in the above referred decision and more particularly in the case of Laxmipat (supra) as well as in the case of Sa Iqbal (supra) as well as Jasvi (supra) and Sitaram (supra).
Be it noted that it was required for the learned Magistrate to be conscious of the fact that the provision for tendering of pardon to accomplice witness was in the statue book as per Section 337 of Cr.P.C., prevailing prior to the present Cr.P.C., 1973. After constitution, the same has continued in the statute book even after 1973 as per the new Code. It was required for him to consider the aspect that when provision is there in the statute book for a period of more than a century and for a period of more than 60 years, after the Constitution of India, the attack by the co-accused on constitutionality of the provisions of the said Section could not be lightly considered as if a doubt is raised in the mind and the matter is referred to the High Court. In all fairness the learned Magistrate ought to have put strain upon himself to examine the provisions and also the case law, and more particularly the view expressed by the Apex Court on the said aspects. Had the observations made by the Apex Court been considered by the learned Magistrate, all doubts in his mind would have been cleared, but it appears to us that instead of exercising the power, which so vests to the learned Magistrate under Section 306, he has, without any proper application of mind, raised the question and referred the matter to this Court by the impugned order.
It is true that there could be certain doubts about the scope and ambit of power with the learned Magistrate on the aspects of balancing the rights of the co-accused and also on the aspects of mode and manner of exercise of his power under Section 306 of Cr.P.C., but in view of the observations made herein above by us after considering the various decision of the Apex Court as well as of the other High Courts too, there should not be any difficulty with the learned Magistrate to exercise the power in accordance with law.
If the scope and ambit of the exercise of power under Section 395 Cr.P.C., is to be considered, it appears to us that there also the learned Magistrate has committed error. There are other decisions, but we may refer to only one decision of Calcutta High Court in the case of State v. Keshab Chandra Naskar, reported at 1962 (2), Cri. Law Journal, 33 (Vol.65) and more particularly the observations in order to consider as to whether it was a case for making reference under Section 395 of Cr.P.C., or not. At para 6 of the said decision, it was observed by the Division Bench as under :-
"6. Before proceeding to discuss the question raised on the Reference, it will be proper to emphasis at the out set the conditions required for such a Reference under Sec. 432 of the Code of Criminal Procedure for some of them do not appear to have been observed. The governing words in that section are:
(1) "Where any court is satisfied that a case pending before it involves a question as to the validity of any Act."
That is the first condition. In other words, a count has to be satisfied that the question of the validity of an Act is raised in a case pending before it. The second fact which constitutes another condition for Refence under Sec. 432 of the Code of Criminal Procedure is that the court has to be "satisfied" that "the determination of that point is necessary for the disposal of the case". In other words, whenever and wherever the validity of An Act is raised, it does not necessarily follow that a Reference must be made. It must be such a point that its determination is "necessary" or essential for the "disposal" of the case. The third and the last major condition in this section for a Reference is that the Court must be of the "opinion" that such Act is invalid or inoperative but has not been so declared by the High Court to which that court is subordinate or by the Supreme Court. When these three major conditions are satisfied then of course it is the duty of the court to send the case setting out its opinion and the reasons therefore and refer the same for the decision of the High Court."
If the facts of the present case are examined it does appear that while making reference, the learned Magistrate has, as observed earlier, misdirected himself on the aspects that the consideration of the say of the other co-accused is a must while exercising the power under Section 306 of Cr.P.C. And he lost sight of the point that the co-accused will have right of cross-examination if the Statement is subsequently recorded of the said accomplice witness and thereafter also further right of cross examination for trial. Further, no proper satisfactory reasons are recorded by the learned Magistrate on the aspects that the constitutional validity of Section 306 of Cr.P.C., is required to be decided first before exercise of power by him under Section 306 of Cr.P.C. In the same manner, no proper and satisfactory reasons are recorded for expressing opinion may be prima facie, that the sanction may be invalid and thereafter to make the reference. Therefore, it appear to us that even if the matter is examined in light of scope and ambit of Section 395 of Cr.P.C., out of the above referred three conditions, condition No.2 and 3 are not satisfied at all for making reference to this Court for deciding the question of constitutional validity of Section 306 of Cr.P.C. The aforesaid is coupled with the circumstances that as observed by us earlier, Section 306 read with observations made by various case laws is clear in itself that the inbuilt mechanism and the power vests to the judiciary and no arbitrary power vests to the authority i.e. learned Magistrate since he has to record the reasons for so doing and subject to right of aggrieved party to challenge before the higher forum. Further, in view of the observations made herein above, there was hardly any valid reason for the learned Magistrate to doubt the constitutional validity of the provisions of Section 306 of Cr.P.C., and to make a reference.
In view of the aforesaid observations and discussions, the conclusion can be deduced as under :-
(a) Section 306 of Cr.P.C., is clear in itself and in view of the various decisions of the Apex Court and also of the other High Courts, including the view expressed by us while interpreting Section 306 of Cr.P.C., there is no unguided or arbitrary power vested to the learned Magistrate but are rather for advancement of the interest of justice.
(b) The say of the other co-accused is not required to be considered, nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon after hearing a person applies for pardon and the prosecution or the investigating machinery but all the co-accused will have a right to cross-examination to the accomplice witness if his statement is recorded before the learned Magistrate and will have further right of cross-examination if such evidence is thereafter used by the prosecution at the time of trial for supporting its case or otherwise at the appropriate stage.
(c) The learned Magistrate under Section 306 of Cr.P.C., is required to decide the application made by the A-12, keeping in view the observations made by us in the above referred judgement and more particularly by maintaining the spirit of advancement of interest of justice and in accordance with law.
(d) The impugned order for making reference by the learned Magistrate is by way misdirection of the exercise of power and condition for making reference have not been satisfied.
In view of the aforesaid, when the provisions of Section 306 of Cr.P.C., read with the above referred case law and observations, provide for inbuilt mechanism, we find that it would be a fit case to exercise the power under Section 482 of Cr.P.C., by quashing and setting aside the order passed by the learned Magistrate dated 28.10.2010 below Exh. 53, which is impugned in the present petition. It will now be for the learned Magistrate to further consider the application under Section 306 of Cr.P.C., in light of the observations made by us herein above and in accordance with law and to pass order.
In the result, the petition is allowed to the aforesaid extent. Rule accordingly.
(Jayant Patel, J.) (H. B. Antani, J.) FURTHER ORDER:
After the pronouncement of the aforesaid judgement, Mr.Vakil as well as Mr.Nayak, learned Sr. Counsel appearing for A-1 and A-5 pray that the operation of this judgement be stayed for a period of four weeks, so as to enable their respective clients to approach before the higher forum.
Whereas, Mr.Ravani as well as Mr.Maheen Pradhan, learned Counsel appearing for CBI resisted the request and objected the same by contending that the Hon'ble Apex Court has direct for completion of the investigation on or before 13.11.2010 and it has been submitted that if the operation is stayed, it may hamper the investigation and, therefore, this Court may not accept the prayer.
Considering the facts and circumstances, it appears to us that when we have ruled that the co-accused have no role to play prior to the grant of pardon by the learned Magistrate to the accomplice witness, it would not be a case to stay the operation of the judgement and order of this Court. However, the learned Magistrate shall proceed with the hearing, in accordance with law, but the order for grant of pardon, if any, shall not be passed for a period of two weeks from today.
(Jayant Patel, J.) (H. B. Antani, J.) vinod Top