Jharkhand High Court
Shiv Kumar Patwari vs The Union Of India Through C.B.I. --- --- ... on 1 February, 2019
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 915 of 2018
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Shiv Kumar Patwari --- --- Petitioner
Versus
The Union of India through C.B.I. --- --- Opp. Party
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CORAM : The Hon'ble Mr. Justice Aparesh Kumar Singh
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For the Petitioner : Mr. Vishnu Kumar Sharma, Adv.
For the C.B.I. :Mr. Rajiv Sinha, ASGI, Raj Nandan Prasad, Niraj Kumar For the Amicus Curiae : M/s. Ashutosh Anand, Nipun Bakshi & Kumar Vaibhav
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15/01.02.2019 Heard learned counsel for the petitioner, learned ASGI and learned Amicus Curiae.
2. Petitioner is aggrieved by part of the order dated 5th March 2018 so far as it relates to him passed in R.C. Case No. 38(A)/1996 by learned court of Special Judge-VII, C.B.I. (AHD Scam), Ranchi, wherein cognizance has been taken against him in purported exercise of the powers under Section 319 Cr.P.C and he has been directed to appear and face trial.
In support of the challenge, learned counsel for the petitioner has made submissions on factual as well as legal grounds which are briefly summed up hereinafter:
3. Petitioner was a Transporter to the Animal Husbandry Department and was made an accused in three fodder scam cases, namely,
(i) R.C. Case No. 41(A)/96 which related to fraudulent withdrawal from AHD Department under Sahebganj Treasury between the period 1990-91; 1992-93 and 1995-96; (ii) R.C. Case No. 64(A)/96 which relates to the period of fraudulent withdrawal between 1992-94 under the AHD Department from Deoghar Treasury and (iii) R.C. Case No. 45(A)/96 relating to fraudulent withdrawals under AHD Department for the period 1991-92 to 1995-96 from Dumka Treasury. He was not implicated in any other fodder scam cases as an accused nor is there any allegation of any supply or transportation or transaction by this petitioner in respect of the remaining R. C Cases.
4. It is submitted that petitioner was granted pardon in all these three cases R. C. Case No. 41(A)/96; R. C. Case No. 64(A)/96 and R. C. 2. Case No. 45(A)/96 by the learned CBI Court on being satisfied that petitioner had made complete and truthful disclosure of all such materials in regard to the said cases. In R.C. Case No. 45(A)/96 and R.C. Case No. 41(A)/96 he was granted pardon by the learned CBI Court on 14th July, 2003 by separate orders annexed as Annexures: 2/1 and 2/2 respectively. In R.C. Case No. 64(A)/96 he was also granted pardon on 4 th May, 2005 enclosed as Annexure-2. In all these three cases, petitioner was adduced as an approver witness on behalf of CBI. He was adduced as P.W. 141 in R.C. Case No. 64(A)/96. In all these three cases conviction has been recorded against the accused persons i.e., the officials of AHD Department, suppliers and others based on the testimony of prosecution witnesses including this petitioner. This petitioner was also adduced as prosecution witness by the CBI in order to support their case in other fodder scam cases, such as R.C. Case No. 68(A)/96 as P.W. 140; R.C. Case No.39(A)/96 as P.W.11 and in the instant R.C. Case No. 38(A)/96 as P.W. 174. R.C. Case No. 68(A)/96 relates to fraudulent withdrawals under the AHD Department from Chaibasa Treasury; R.C. Case No. 39(A)/96 relates to fraudulent withdrawals under AHD Department from Sahebganj Treasury during the period 1994-95. The instant R.C. Case No. 38(A)//96 relates to fraudulent withdrawal between the periods December, 1995 to January, 1996 under AHD Department from Dumka Treasury. Convictions have been recorded in all these three cases also by the learned CBI Court against several suppliers, officials of the AHD Department and others including politician based upon the testimony of the prosecution witnesses including that of the petitioner. In these three cases petitioner was not an accused. There were no incriminating materials found against him by the CBI during investigation to arraign him as an accused either. The evidence of this petitioner as P.W.11 in R.C. Case No. 39(A)/96 (Annexure-2) was adopted in toto in the instant R. C Case No. 38(A)/96 vide Annexure-1 as prosecution witness no. 174. The evidence brought on record through the mouth of the petitioner in these R. C. Cases support the case of CBI and did not reveal any incriminating materials as against him. Even otherwise, as a legal principle, testimony of a prosecution witness cannot be treated as self-incriminating in view of the protection granted under Article 3. 20(3) of the Constitution of India and Section 132 of the Evidence Act as clearly laid down by the Apex Court in the case of R. Dineshkumar @ Deena vs. State reported in (2015) 7 SCC 497, paragraphs 44 and 45.
5. Learned Trial Court during the discussion made in respect of the petitioner in the impugned order at paragraph-G has also failed to make reference to any incriminating material whatsoever in connection with the instant R. C Case to form such an opinion. It is also urged that the petitioner was granted pardon on the basis of truthful and complete disclosure made by him of all such materials in regard to three R. C. Cases. Learned CBI Court in any of those three cases, in which he was granted pardon, had no occasion to observe that the petitioner had failed to make complete and truthful disclosure of all such materials in breach of the conditions of pardon. In the other two R. C. Cases R.C. Case No. 68(A)/96, and 39(A)/96 and in the present R.C. Case No. 38(A)/96 also there is no finding to the effect that the petitioner had not made complete and truthful disclosure of all such materials in regard to the said cases and committed a breach of the conditions of pardon granted in other three cases. No such application was made by the learned Special Public Prosecutor on behalf of CBI in terms of Section 308 Cr.P.C. As such, the petitioner has not been found responsible for breach of the conditions of pardon.
6. Learned counsel for the petitioner submits that the provisions under Sections 306 to 308 Cr.P.C lay down the principles of grant of pardon to an accused and also the circumstances, in which the pardon can be cancelled i.e., if the accused, who has been granted pardon fails to make complete and truthful disclosure of all such materials in regard to the said case and the same is certified by the learned Public Prosecutor also. Learned Trial Court has fallen in serious error in taking cognizance against the petitioner in purported exercise of the powers under Section 319 Cr.P.C. Learned counsel for the petitioner further submits that the scope of exercise of the powers under Section 319 Cr.P.C has been settled by the Constitution Bench Judgment of the Apex Court in the case of Hardeep Singh -Vs. - State of Punjab reported in (2014) 3 SCC 92. The test for exercise of such power is one which is more than a prima-facie case required at the time of 4. framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to his conviction. The word 'evidence' has to be understood in its wider sense both at the stage of trial and even at the stage of inquiry. Tested on these principles, the order impugned completely fails to satisfy the requirement of law as laid down in the case of Hardeep Singh (Supra).
7. Petitioner has also not been granted any opportunity to show cause or hearing before such an order of arraignment has been passed. This is in teeth of the ratio rendered by the Apex Court in the case of Jogendra Yadav Vs. State of Bihar reported in (2015) 9 SCC 244 para-9. Learned counsel for the petitioner has submitted that the impugned order cannot survive legal scrutiny on both factual and legal grounds. He submits that this Court while dealing with the case of another approver Dipesh Chandak, who was also arraigned as an accused under Section 319 Cr.P.C by the common impugned order dated 5th March, 2018 passed in the instant R.C. Case No. 38(A)/96 has upon consideration of all the factual and legal grounds pleased to quash the same by the order dated 11 th January, 2019 passed in Cr.M.P. No. 906 of 2018. He submits that all legal grounds as raised and considered by this Court in the said case apply on equal footing to the case of the present petitioner also. If the order of cognizance is not quashed, it would lead to miscarriage of justice.
8. Learned ASGI on behalf of the CBI submits that this petitioner was granted pardon in three R.C. Cases named above, in which he was made an accused and had deposed in favour of the CBI in all those three cases as prosecution witness. He had supported the prosecution story in full. In these three R.C. Cases, namely, R.C. Case No. 68(A)/96; R.C. Case No. 39(A)/96; R.C. Case No. 38(A)/96, petitioner has been adduced as a prosecution witness and supported the case of the prosecution. There has been no certification on the part of the learned Special Public Prosecutor representing the CBI to the effect that he has failed to make truthful and complete disclosure of all material circumstances in respect of the offences and/or the persons involved in the instant cases. There has been no application on behalf of CBI either or any other accused persons for arraigning the petitioner as an accused under Section 313 Cr.P.C. He further submits that there are no incriminating 5. material evidence adduced by the prosecution neither referred to nor discussed while passing the impugned order. Learned ASGI submits that the instant case relates to fraudulent withdrawal during the period December, 1995 and January, 1996 under AHD Department from Dumka Treasury during which period there has been no transaction or payments made to this petitioner against any such supplies or transportations. Therefore, CBI had no occasion to arraign him as an accused. The order impugned has to be tested in the light of the well settled principles of law laid down by the Constitution Bench Judgment of the Apex Court in the case of Hardeep Singh(supra).
9. Learned Amicus Curiae has assisted the Court on the legal principles as laid down in the judgment of the Apex Court especially in the case of Hardeep Singh(supra), Brijendra Singh and Ors.(supra) and Jogendra Yadav & Ors. (supra). Learned Amicus Curiae has also referred to the judgment of the Apex Court in the case of R. Dineshkumar & Deena (supra) relied upon by the counsel for the petitioner on the proposition that a witness enjoys protection guaranteed under Article 20(3) of the Constitution of India and Section 132 of the Evidence Act and self- incriminating material, if any, found in his testimony cannot be used as against him. He submits that the impugned order of course does not reveal any specific discussion of material evidence, if any, as against the petitioner which has come up during inquiry or trial in the present case. It is pointed out that the ratio rendered by the Apex Court in the case of Hardeep Singh(supra) has also been followed in the recent judgment such as in the case of Labhuji Amratji Thakor Vs. State of Gujarat reported in 2018 (15) Scale 39.
10. Considered the submission of learned counsel for the petitioner, ASGI and the Amicus Curiae and also perused the impugned order. It is apparent from a reading of the impugned order that trial in R.C. Case No. 38(A)/96 had concluded and the case was being posted for judgment by learned CBI Court. At that stage, the learned Court proceeded to summon a number of persons under Section 319 Cr.P.C including the petitioner, all of whom have laid specific challenge to it in respective 6. criminal petitions. For proper appreciation, the part of the order under Paragraph-G which specifically relates to the petitioner is being extracted hereinbelow:
"Para-G: After perusal of records, it transpires that P.W.174 examined Shiv Kumar Patwari, whose chief examination adopted from R.C. No. 39(A)/1996 clearly deposed in para-3 that Anand Kumar Gutgutia is nephew (Bhanja) who lived in Dumka, 1995 and business relating to soap and Agarwati. Anand Kumar no any transport agency and Rajendra Kumar Bageria is employee under the Anand Kumar Gutgutia. This witness deposed in para-4 that he is not accused in R.C. No. 38(A)/1996. This witness in R.C. No. 39(A)/1996 clearly deposed that his business relating to Potato and Onion and he developed relation with District Animal Husbandry Officers, clearly deposed in para-4 that in 1984 he transport Pig, Hen and feed of animals and submitted bill about Rs. 2,00,000.- (Two Lakh) but do not receive payment. He again developed relation with R.D, AHD Dumka Dr. Parimal Chakarvorty, who retired on 31.12.1990. Successor Dr. Shesh Muni Ram joined on 01.01.1991 as R.D AHD, Dumka, who admitted in para-8 that on payment of 25% to Dr. Shesh Muni Ram the old bill clear and made payments. This witness admitted in para- 30 that those bill who expired passed later on by Dr. Shesh Muni Ram. In this way court found that this witness in good book of C.B.I., Inspector, who earn a lot of illegal money without transporting the animal and animal feed in Santhal Pargana Region but do not prosecute by the C.B.I due to provide umbrella of protection.
After perusal of oral and documentary evidences, court found in the ends of Justice that the prosecution of this witness Shiv Kumar Patwari is essential. In the light of above discussion and evidence available on record, court found prima facie case against Shiv Kumar Patwari supplier U/s- 120(B) r/w Sec-420, 467, 468, 471, 477(A) of I.P.C. Hence, taken cognizance against above accused Shiv Kumar Patwari. O.C is directed to issue summon against Shiv Kumar Patwari for appearance and face the trial in the court."
11. This petitioner was granted pardon by learned CBI Court in R.C. Case No. 41(A)/96 relating to Sahebganj Treasury for the period of fraudulent withdrawals under AHD between 1991-92; 1992-93 and 1995- 96 on 14th July, 2003 on being satisfied that he had made complete and truthful disclosure of all the circumstances in relation to the said case in respect of the offences and/or the persons involved in the said case.
7.Similarly, in the other R.C. Case no. 45(A)/96, he was granted pardon by the order of the same date 14th July, 2003, which related to fraudulent withdrawals under AHD Department from Dumka Treasury in the period 1990-94. He was adduced as prosecution witness no. 81 on behalf of the CBI in the said case. In R.C. Case No. 64(A)/96 also petitioner was made an accused by the CBI and later on granted pardon by learned CBI Court on 4th May, 2005. This case related to fraudulent withdrawals between the period 1990-94 under AHD Department from Deoghar Treasury. Learned CBI Courts' did not have reason to cancel the pardon granted to this petitioner in all these three cases and no such observation had been made to the effect that he had failed to make complete and truthful disclosure of all the material circumstances of the said cases. In the other three cases i.e., R.C. Case No. 68(A)/96; R.C. Case No. 39(A)/96 and in the instant R.C. Case No. 38(A)/96 petitioner was adduced as prosecution witness no. 140; P.W.11 and P.W. 174. There is no finding by learned CBI Court in the other two cases R.C. Case No. 68(A)/96 or R.C. Case No. 39(A)/96 and even in the instant R.C Case that petitioner had failed to make truthful and complete disclosure of all material circumstances in relation to the said case, which could be a breach of the conditions of pardon granted to him in the other three cases, where he was made an accused. It is neither the case of the CBI that any certification was made in this case by learned Special Public Prosecutor that he had failed to make complete and truthful disclosure of all the material circumstances in respect of the offences and/or the persons involved in the instant case. The instant R.C. Case relates to fraudulent withdrawal under AHD Department during the period December, 1995 to January, 1996 from Dumka Treasury. On behalf of the CBI, learned ASGI has made a categorical statement that there is no evidence at all of any transaction whatsoever by this petitioner during this period under AHD Department from Dumka Treasury. Leaned Trial Court has also not made any reference to any such incriminating material evidence found during inquiry or trial in connection with the instant R.C. Case No. 38(A)/96.
8.12. The scope of power under Section 319 Cr.P.C and the test to be satisfied in exercise of such an extraordinary and discretionary power has been settled by the Apex Court in the Constitution Bench Judgment rendered in the case of Hardeep Singh(supra). The following five questions were framed for answer at paragraph 6 of the said judgment as under:
"6.1. (i) What is the stage at which power under Section 319 Cr PC can be exercised?
6.2. (ii) Whether the word "evidence" used in Section 319(1) Cr PC could only mean evidence tested by cross-
examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? 6.3. (iii) Whether the word "evidence" used in Section 319(1) Cr PC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr PC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? 6.5. (v) Does the power under Section 319 Cr PC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"
The Apex Court has summarized its conclusion as answer to these questions at Para-117 of the report quoted hereunder:
"117. We accordingly sum up our conclusions as follows:
Questions (i) and (iii)
-- What is the stage at which power under Section 319 Cr PC can be exercised?
AND
-- Whether the word "evidence" used in Section 319(1) Cr PC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? Answer 117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed 9 by the police after completion of the investigation. Such cognizance can be taken under Section 193 Cr PC and the Sessions Judge need not wait till "evidence" under Section 319 Cr PC becomes available for summoning an additional accused.
117.2. Section 319 Cr PC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr PC, and under Section 398 Cr PC are species of the inquiry contemplated by Section 319 Cr PC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr PC, and also to add an accused whose name has been shown in Column 2 of the chargesheet.
117.3. In view of the above position the word "evidence" in Section 319 Cr PC has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question (ii)--Whether the word "evidence" used in Section 319(1) Cr PC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
Answer 117.4. Considering the fact that under Section 319 Cr PC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr PC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question (iv)--What is the nature of the satisfaction required to invoke the power under Section 319 Cr PC to arraign an accused? Whether the power under Section 319(1) Cr PC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer 117.5. Though under Section 319(4)(b) Cr PC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr PC would be the 10. same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question (v)--Does the power under Section 319 Cr PC extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged? Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr PC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr PC has to be complied with before he can be summoned afresh."
13. The Apex Court at paragraph 106 of the report has while answering the question no. (iv) held as under:
"106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr PC.
...........................(emphasis supplied to the original text) Further at paragraphs 84 and 85 of the report, the Apex Court while answering the question no. (iii), held that the word 'evidence' has to be understood in its wider sense both at the stage of trial and even at the stage of inquiry, as used under Section 319 Cr.P.C. The ratio rendered by the Apex Court in the case of Hardeep Singh(supra) has been followed in the subsequent judgments rendered in the case of Mohammed Ispahani 11. Vs. Yogendra Chandak & Ors. reported in (2017) 16 SCC 226, where at para- 29, the Apex Court has quoted the opinion rendered in the case of Brijendra Singh & Ors., Vs. State of Rajasthan reported in (2017) 7 SCC 706, whereunder the principles laid down in the case of Hardeep Singh(supra) have been further explained. As per the ratio rendered in these cases, the test that has to be applied in exercise of the powers under Section 319 Cr.P.C is one which is more than a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 Cr.P.C. It has been observed by the Apex Court in the aforesaid judgments that since it is a discretionary power given to the Court under Section 319 Cr.P.C and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
While tested on these salutary principles, the impugned order summoning the petitioner to face trial as an accused under Section 319 Cr.P.C completely fall short of it. Learned Trial Court has, on the one hand, made no reference to any incriminating material found during inquiry or trial in the instant R.C. Case against the petitioner and at the same time failed to hold that such evidence if went unrebutted would lead to his conviction.
14. A perusal of the impugned order indicates that the evidence of the petitioner R.C. Case No. 39(A)/96 as adopted in the instant R.C Case no. 38(A)/96 is made the basis to form an opinion that CBI has failed to 12. prosecute him and provide an umbrella of protection. Learned Court appears to be oblivious of the legal position that testimony of a witness, if it contains self- incriminating material, cannot be used against him in view of the protection granted under Article 20(3) of the Constitution of India read with Section 132 of the Evidence Act as laid down in the case of R. Dineshkumar @ Deena (supra) paragraph 44 whereof is quoted hereunder profitably:
44. The proviso to Section 132 of the Evidence Act is a facet of the rule against self-incrimination and the same is a statutory immunity against self-
incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person while deposing as a "witness" before a court.
15. Learned court has also failed to accord any opportunity to show cause to the petitioner before arraigning him as an accused in compliance of the principles of natural justice as laid down in the case of Jogendra Yadav Vs. State of Bihar reported in (2015) 9 SCC 244. Para-9 of the report containing the opinion of the Apex Court on this point is quoted with profit:
9. It was, however, urged by the learned counsel for the appellants that in order to avail of the remedies of discharge under Section 227 CrPC, the only qualification necessary is that the person should be an accused. The learned counsel submitted that there is no difference between an accused since inception and the accused who has been added as such under Section 319 CrPC. It is, however, not possible to accept this submission since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 CrPC, is necessarily heard before being so added. Often he gets a further hearing if he challenges the summoning order before the High Court and further. It seems incongruous and indeed anomalous if the two sections are construed to mean that a person who is added as an accused by the court after considering the evidence against him can avail remedy of discharge on the ground that there is no sufficient material against him.
Moreover, it is settled that the extraordinary power 13. under Section 319 CrPC, can be exercised only if very strong and cogent evidence occurs against a person from the evidence led before the Court.
(emphasis supplied by underlined) Elaborate arguments have been made before this Court and the materials relied upon in support during hearing, in itself indicate that an opportunity to show cause was required to be given before any such prima facie opinion was found by the learned Trial Court. Arraignment as accused, in itself entails serious adverse consequences. The order impugned is therefore in violation of the principles of natural justice on that score.
16. Learned counsel for the petitioner has also placed reliance on the order dated 11th January, 2019 passed in Cr.M.P. No. 906 of 2018 in the case of Dipesh Chandak Vs. State of Jharkhand through C.B.I. in support. Petitioner, Dipesh Chandak was also aggrieved by the order of arraignment passed under Section 319 Cr. P. C by the common impugned order dated 5th March, 2018 passed in the instant R.C. Case No. 38(A)/96 by the same learned Court arraigning him as an accused in exercise of the powers under Section 319 Cr.P.C. He had also raised common legal grounds in support of the challenge. In the case of Dipesh Chandak also, there was no finding by learned CBI Court that he had violated the conditions of pardon and failed to make complete and truthful disclosure of all material circumstances in regard to that case. The Special Public Prosecution CBI had not given any certificate that in his opinion such person was either by willfully concealing anything essential or by giving false evidence not complied with the conditions on which pardon was granted as per the requirement of Section 308 Cr.P.C. The factual score in the case of the present petitioner also stands on similar footing. There is no finding that petitioner had concealed or hidden any evidence and had failed to comply with the conditions of pardon or failed to make complete and truthful disclosure of all the material circumstances relating to the offence and/or the accused persons.
14.17. The observations of this Court made in the case of Deepesh Chandak on these legal issues, therefore, applies to the case of the present petitioner. It is not out of place to refer to the principles laid down by the Apex Court in the case of Jasbir Singh Vs. Vipin Kumar Jaggi and others reported in (2001) 8 SCC 289, on which pardon is granted to an accused person. It has been observed that the basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. Such persons involved in such criminal activity would obviously try to conceal and hide any evidence of their activities in as many ways as human ingenuity can devise. This is why the prosecution is often compelled to rely on the evidence of an accomplice to bring the most serious offenders to book.
18. I have in the foregoing paragraphs, carefully dealt with the contentious issues involved in the matter in detail. On the basis of the aforesaid discussions and for the reasons recorded hereinabove, this Court is satisfied that the impugned order suffers on more than one counts. It deserves to be quashed, lest it may result in miscarriage of justice. Accordingly, the impugned order so far as it relates to the petitioner is quashed. The instant petition is allowed.
19. While parting, this Court records its appreciation to the valuable assistance accorded by the learned Amicus Curiae during hearing of the case. The Member Secretary, High Court Legal Services Committee shall bear the admissible fee/legal remuneration of the learned Amicus Curiae.
jk/ (Aparesh Kumar Singh, J.)