Kerala High Court
State vs Shri. Vijayan V.P on 18 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
Crl.MC.No.5118 OF 2017(H)
AGAINST THE ORDER IN CC 7/2007 OF SPECIAL C SPE/CBI-II&4
ADDITIONAL DISTRICT COURT,EKM
AGAINST THE ORDER/JUDGMENT IN CRMP 4683/2006 DATED 15-01-2007 OF
CHIEF JUDL.MAGISTRATE, ERNAKULAM
PETITIONER:
STATE,
REPRESENTED BY JEEJO P JOSEPH, INSPECTOR OF POLICE,
CBI/ACB/COCHIN
BY ADV. SHRI.SASTHAMANGALAM S. AJITHKUMAR, SC,
CENTRAL BUREAU OF INVESTIGATION
RESPONDENTS:
1 SHRI. VIJAYAN V.P.,
S/O. VELAYUDHAN NAIR, BIJU NIVAS, VALIYAPARAMBA,
MUTHUVALOOR POST, KONDOTTY, MALAPPURAM DISTRICT,
KERALA-679357.
2 P.P. AHMED,
S/O. HASSAN, PARAMBATHUPALLIYALIL HOUSE,
KUMMINIPPARAMBU POST, KARIPPUR, CALICUT-673001.
3 P.P. ABDUL RAHMAN,
S/O. KAMMADUNNI, KUMMINIPARA HOUSE, KUMMINIPPARAMBU
POST, KARIPPUR, CALICUT-673001.
R1 BY ADV. SRI.K.K.ANIL KUMAR
R1-3 BY ADV. SMT.R.LEELA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
22.01.2021, THE COURT ON 18.02.2021 PASSED THE FOLLOWING:
Crl.M.C.No.5118/2017
2
R.NARAYANA PISHARADI, J
************************
Crl.M.C.No.5118 of 2017
-----------------------------------------------
Dated this the 18th day of February, 2021
ORDER
This is an application for sanction for prosecution filed under the second proviso to Section 308(1) of the Code of Criminal Procedure, 1973 (for short 'the Code').
2. The application is filed by the State which is represented by the Inspector of Police, Central Bureau of Investigation (CBI).
3. The respondents were accused 3, 7 and 6 in the case registered as R.C.No.26(A)/2005/CBI/ACB/Kerala under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and under Section 120B of the Indian Penal Code.
4. It is not necessary here to narrate the details of the prosecution case. Suffice it to state that the case related to Crl.M.C.No.5118/2017 3 receiving of bribe by the customs officers at Calicut Airport from the passengers.
5. As per Annexure-A1 order dated 15.01.2007, the Chief Judicial Magistrate, Ernakulam had granted pardon to the respondents under Section 306 of the Code.
6. On the basis of the final report filed by the CBI, cognizance of the offences mentioned above was taken by the Special Court (SPE/CBI)-II, Ernakulam and the case was numbered as C.C.No.7/2007. During the trial of the case, the respondents were examined as PW1, PW2 and PW13. They did not support the prosecution case during the trial. They were declared hostile to the prosecution. They were cross-examined by the Public Prosecutor with the permission of the court. The case ended in the acquittal of the accused who faced the trial.
7. The Special Public Prosecutor, CBI has issued certificate as contemplated under Section 308(1) of the Code in respect of the respondents.
8. This application is filed by the State seeking sanction for trying the respondents for committing the offence of giving Crl.M.C.No.5118/2017 4 false evidence.
9. Heard the learned Standing Counsel for the CBI and also the learned counsel for the respondents.
10. Learned Standing Counsel for the CBI contended that the respondents, who were granted pardon, violated the terms and conditions of the pardon accepted by them. Learned Standing Counsel submitted that the respondents deliberately did not make a full and true disclosure of the whole circumstances of the case within their knowledge relating to the offence and other persons concerned during the trial of the case and they betrayed the prosecution. Therefore, sanction is sought for prosecution of the respondents for committing the offence of giving false evidence.
11. Per contra, learned counsel for the respondents contended that, after granting pardon to the respondents, they were not examined under Section 306(4)(a) of the Code and therefore, they are not liable to be tried for committing the offence of giving false evidence.
12. Section 306(1) of the Code states that, with a view to Crl.M.C.No.5118/2017 5 obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which that 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.
13. Section 306(4)(a) of the Code states that, every person accepting a tender of pardon made under sub-section (1) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial.
14. Section 307 of the Code provides that, at any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been Crl.M.C.No.5118/2017 6 directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.
15. Section 308(1) of the Code provides that, where, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307 of the Code, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence. The first proviso to this section states that such person shall not be tried jointly with any of the other accused and the second proviso to this section states that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in Section 195 or Section 340 shall apply to that offence. Section 308(2) of the Code provides that, any statement made by such person accepting the tender of Crl.M.C.No.5118/2017 7 pardon and recorded by a Magistrate Section 164 or by a Court under sub-section (4) of Section 306 may be given in evidence against him at such trial.
16. Section 308(1) of the Code empowers the Public Prosecutor to certify that, in his opinion, an accused to whom pardon has been granted, has wilfully concealed something essential, or given false evidence and has, thereby, failed to comply with the condition, subject to which pardon was granted to him. On such certificate being issued by the Public Prosecutor, the approver becomes liable to be tried for the offence in respect of which he had earlier been granted pardon, as well as for any other offence, of which he appears to have been guilty, and for giving false evidence. But, sanction of the High Court is required for trying such person for committing the offence of false evidence.
17. An accomplice who has been granted pardon under Section 306 or Section 307 of the Code gets protection from prosecution. When he is called as a witness for the prosecution, he must comply with the condition of making a full and true Crl.M.C.No.5118/2017 8 disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. The legal position that flows from the provisions contained in Sections 306, 307 and 308 of the Code is that once an accomplice is granted pardon, he stands discharged as an accused and becomes witness for the prosecution. As a necessary corollary, once the pardon is withdrawn or forfeited on the certificate given by the Public Prosecutor that such person has failed to comply with the condition on which the tender was made, he is reverted to the position of an accused and liable to be tried separately.
18. The contention of the respondents is that, after accepting pardon, they were not examined under Section 306(4) of the Code and therefore, they are not liable to be tried for the offence of giving false evidence. Learned counsel for the respondents would contend that examination of an accomplice under Section 306(4) of the Code is mandatory after granting him pardon and unless such person is so examined, he cannot be treated as a person who has been granted or who has accepted Crl.M.C.No.5118/2017 9 pardon.
19. In the instant case, pardon was granted to the respondents under Section 306 of the Code and not under Section 307 of the Code. Pardon was granted to them during the investigation stage of the case by the Chief Judicial Magistrate. Thereafter, they were not examined under Section 306(4) of the Code at any stage.
20. Section 306(4) of the Code mandates the examination, as a witness, of the person accepting pardon in the Court of the Magistrate taking cognizance of the offence, as well as in the subsequent trial, if any. In Re. Chief Judicial Magistrate : 1988 Cri.L.J 812, it has been held that examination under Section 306(4) of the Code, of the person who has been granted pardon, is mandatory. This decision was overruled by the Division Bench in State of Kerala v. Monu Surendran (1990 (1) KLT 53) but the finding that, the examination of the approver under Section 306(4) of the Code is mandatory, was not disturbed. Monu Surendran (supra) itself was overruled by the Full Bench of this Court in Asokan v. State Crl.M.C.No.5118/2017 10 of Kerala (2005 (3) KLT 770).
21. In Suresh Chandra Bahri v. State of Bihar : AIR 1994 SC 2420, it has been held as follows:
"The examination of accomplice or an approver after accepting the tender of pardon, as a witness in the court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in sub-section(1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the committing Magistrate would not only amount to breach of the mandatory provisions contained in clause (a) of sub-section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. Thus breach of the provisions contained in clause (a) of sub-section (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, non-compliance of the same would render committal order illegal."Crl.M.C.No.5118/2017 11
22. In Deivendran v. State of Tamil Nadu : AIR 1998 SC 2821, it was held that, in a case exclusively triable by the Court of Session, if an accused is tendered pardon and is taken as an approver before commitment, then compliance of sub- section (4) of Section 306 of the Code becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 of the Code, then in such a case the provisions of sub-section (4) of Section 306 of the Code are not attracted. It was held that the procedural requirement under clause (a) of sub-section (4) of Section 306 of the Code to examine the accused after tendering pardon cannot be held to be a condition of grant of pardon.
23. However, in State of Himachal Pradesh v. Surinder Mohan : AIR 2000 SC 1862, it was held that a belated objection by the defence regarding non-examination of the approver under Section 306(4) of the Code cannot be accepted. Crl.M.C.No.5118/2017 12
24. In State v. Jagjit Singh : AIR 1989 SC 598, it has been held that the approver to whom pardon has been granted shall be examined as a witness both in the committing court as well as in the trial court. It was held that the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the committing court as well as in the trial court.
25. The decision in Jagjit Singh (supra) has no application to the facts of the present case. It was a case in which the approver did not support the prosecution during his examination before the Magistrate under Section 306(4) of the Code and thereafter he raised a contention that he was not liable to be examined as a witness for the prosecution during the trial of the case. The Apex Court rejected this contention and held that an approver has to be examined both in the committing court as well as the trial court and only thereafter, pardon granted to him can be withdrawn by the State and that the approver cannot cast away the pardon granted to him till he is Crl.M.C.No.5118/2017 13 examined as a witness by the prosecution during the trial of the case.
26. Before proceeding further, it is pertinent to note that though the present case was one not exclusively triable by the Court of Session but by a Special Judge under the Prevention of Corruption Act, pardon was granted to the respondents under Section 306 of the Code and not under Section 307 of the Code, during the investigation stage.
27. During the investigation of a case, which is triable by a Special Judge under the Act, the Special Judge as well as the Magistrate acting under Section 306 of the Code have concurrent jurisdiction to grant pardon (See P.C.Mishra v. State : AIR 2014 SC 1921 and State v. Arul Kumar: AIR 2016 SC 2551).
28. When pardon is granted by the trial court under Section 307 of the Code, examination of the approver under Section 306(4) of the Code is not necessary (See Santosh Kumar v. State of Maharashtra : (2009) 6 SCC 498 and Narayan Chetanram Choudhary v. State of Maharashtra :
AIR 2000 SC 3352).Crl.M.C.No.5118/2017 14
29. Non-examination of the respondents under Section 306(4) of the Code did not affect their status as approvers or persons who had been granted pardon. The scheme of the provisions relating to granting of pardon contained in Sections 306 to 308 of the Code would show that there is no legal basis for the contention raised by the learned counsel for the respondents in this regard. The provisions contained in Section 308 of the Code are applicable to a person who has been granted pardon not only under Section 306 of the Code but also under Section 307 of the Code. In many cases, where pardon is granted under Section 307 of the Code, the approver will be examined only during the trial of the case and there will not be an examination of him under Section 306(4) of the Code. This gives an indication that non-examination of the approver under Section 306(4) of the Code does not render the order granting him pardon illegal or void and that it does not affect his status as an approver.
30. In Deivendran (supra), the Apex Court has held as follows:
Crl.M.C.No.5118/201715
"The next question that arises for consideration is as to whether non-examination of the approver as a witness after grant of pardon and thereby non- compliance of sub-section (4)(a) of Section 306 vitiates the entire proceeding. In the case in hand there is no dispute that after the Chief Judicial Magistrate granted pardon to the accused he was not examined immediately after the grant of pardon and was only examined once by the learned Sessions Judge in course of trial. The question that arises for consideration is : when an accused is granted pardon after the case is committed to court of session would it be necessary to comply with sub-section (4)(a) of Section 306 of the Code. ..... The correctness of the rival submissions again would depend upon true interpretation of Sections 306 and 307 of the Code. Under Section 307 when pardon is tendered after commitment of the proceedings by the Court to which the commitment has been made the legislative mandate is that the pardon would be tendered on the same condition. The expression "on the same condition" obviously refers to the condition of tendering a pardon engrafted in sub- section (1) of Section 306, the said condition being the person concerned on making a full and true disclosure of the whole of the circumstances Crl.M.C.No.5118/2017 16 within his knowledge relating to the offence. Sub- section (4) of Section 306 cannot be held to be a condition for tendering pardon. A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of sub-section (4) of Section 306 are not attracted. The procedural requirement under sub-section (4)(a) of Section 306 to examine the accused after tendering pardon cannot be held to be a condition of grant of pardon. ..... when the legislature in Section 307 have made specific reference to only on "such conditions" and not to the other procedures in Section 306 it would not be a rule of interpretation to hold that even sub- section (4)(a) of Section 306 would also be applicable in such a case".Crl.M.C.No.5118/2017 17
31. The decision in Deivendran (supra) is authority for the proposition that sub-section (4) of Section 306 of the Code cannot be held to be a condition for tendering pardon.
32. In Dineshkumar @ Deena v. State : AIR 2015 SC 1816, the Supreme Court allowed the trial court to grant pardon under Section 307 of the Code to a witness already examined by the prosecution and to examine him afresh in the case.
33. The power to tender pardon is not controlled by sub- section (4) or (5) of Section 306 of the Code. These sub-sections deal with the matters pertaining to post pardon stage. Under Section 306 of the Code, the power to tender pardon stands alone and others are matter of procedure. If in such situation, the matters of procedure are not applicable, it would not negate the power to grant pardon. Insofar as procedural matters are concerned, the same apply to the extent applicable (See Harshad S.Mehta v. State of Maharastra: AIR 2001 SC 3774).
34. Learned counsel for the respondents would invite the attention of this Court to the provision contained in Section Crl.M.C.No.5118/2017 18 308(2) of the Code in support of her contention. It provides that, any statement made by a person accepting the tender of pardon and recorded by a Magistrate under Section 164 or by a Court under sub-section (4) of Section 306 of the Code may be given in evidence against him at the trial against him. This provision is not concerned in any way with the legality of the pardon accepted by or granted to a person under Section 306 of the Code. It is only a provision which deals with the admissibility in evidence of the statement of an approver recorded under Section 164 or under Section 306(4) of the Code in a trial against him.
35. The discussion above leads to the following conclusions. Examination under sub-section (4) of Section 306 of the Code of a person who has been granted pardon is only a matter of procedure. It is not a condition of granting pardon to an accomplice. Non-examination of an approver under sub- section (4) of Section 306 of the Code does not affect the validity of the order granting pardon. It does not render such order illegal or void. It does not affect the status of the person who has Crl.M.C.No.5118/2017 19 been granted or who has accepted pardon. The fact that, in a case exclusively triable by the Court of Session, non-examination of an approver under Section 306(4) of the Code may vitiate the trial of the case, is not a sufficient ground to find that it is a matter that affects the validity of the order granting pardon to such person.
36. However, in the instant case, whether sanction for prosecution of the respondents for committing the offence of giving false evidence has to be granted or not, is a different question. The discretion vested in the High Court to grant sanction for the prosecution of an approver for the offence of giving false evidence must be exercised with extreme caution (See State v. Atma Ram : AIR 1966 HP 18). It sometimes happen that, when an investigating officer is confronted with a weak case, in his misplaced zeal, he attempts to bolster it by getting hold of an approver. If there is any such indication in the circumstances of a particular case, sanction ought not to be given (See State v. Dial Singh : AIR 1958 PH 310).
Crl.M.C.No.5118/201720
37. The first respondent was a person working as contingent labourer in the Calicut Airport. The second respondent was a taxi driver in the airport. The third respondent was a person who was conducting business in exchange of foreign currency near the Calicut Airport. According to the prosecution case, it was through the respondents that the money collected as bribe from the passengers was distributed among the customs officers.
38. Though no statement under Section 306(4) of the Code of the respondents was recorded, before granting pardon to them, their confession statements had been recorded by the Judicial First Class Magistrate concerned under Section 164 of the Code.
39. The respondents 1 to 3 were examined as PW13, PW2 and PW1 respectively during the trial of the case. Then, the Public Prosecutor cross-examined them with the permission of the court and they were confronted with the statements given by them to the investigating officer and also with the confession statement made by them before the Judicial First Class Crl.M.C.No.5118/2017 21 Magistrate under Section 164 of the Code. With regard to the confession statement, during the trial of the case, each of the respondents admitted giving such statement before the Magistrate but deposed that such statement was given under the threat of the CBI officers. In effect, they retracted the confession made by them before the Judicial First Class Magistrate under Section 164 of the Code.
40. A confession statement under Section 164 of the Code is not a statement made on oath. Taking statement on oath of an accused is prohibited (See Babubhai v. State of Gujarat : AIR 2007 SC 420).
41. A statement made by an approver, in order to come within the purview of Section 308(2) of the Code, must be a statement made by him after granting pardon and not before (See Miral v. Emperor : AIR 1943 Sind 166).
42. In the instant case, in the absence of any previous statement on oath made by the respondents, it would be difficult to find that the statement made by them during the trial of the case is false. True, giving false evidence can be proved in any Crl.M.C.No.5118/2017 22 other manner than with reference to a statement on oath. But, it would be a difficult task.
43. Moreover, the CBI has not produced copy of the judgment of the trial court acquitting the accused in the case. In the absence of the judgment of the trial court, this Court is not in a position to ascertain whether the prosecution case against the other accused was mainly based on the evidence to be given by the respondents as approvers and whether the acquittal of the accused was mainly for the reason that the respondents did not support the prosecution case. The salutary principle of tendering pardon to an accomplice is to unravel the truth in a case of grave offence so that the guilt of the other accused in the commission of the crime could be brought home. In the instant case, there is no material produced before this Court to find out what observations or findings have been made by the trial court with regard to the evidence given by the respondents during the trial of the case.
44. In the aforesaid circumstances, I find that it not expedient to grant sanction for prosecution of the respondents Crl.M.C.No.5118/2017 23 for committing the offence of giving false evidence. In the absence of any previous statement on oath made by the respondents before the trial of the case, it would be very difficult to prove that they committed perjury. The chances of a conviction against the respondents are very bleak and trial of a case against them for committing the offence of giving false evidence would be a wastage of precious judicial time. In these circumstances, the petition is liable to be dismissed.
45. Consequently, the prayer for granting sanction for prosecution of the respondents for committing the offence of giving false evidence is rejected and the petition is dismissed. However, it is made clear that this order will not preclude the State from trying the respondents for the offences in respect of which pardon was tendered to them.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr Crl.M.C.No.5118/2017 24 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE A1 ORDER DATED 15/01/2007 PASSED IN CRL.
MP NO. 4683/2006 (RC 26(A)/2005/SPE/KERALA) ANNEXURE A2 STATEMENT OF V P VIJAYAN RECORDED U/S. 164 CR. PC.
ANNEXURE A2(A) STATEMENT OF P.P. AHAMED RECORDED U/S. 164 CR. PC.
ANNEXURE A2(B) STATEMENT OF ABDUL RAHIMAN RECORDED U/S. 164 CR. PC.
ANNEXURE A2(C) STATEMENT OF V P VIJAYAN RECORDED U/S. 306(4) CR. PC.
ANNEXURE R2(D) STATEMENT OF AHAMED RECORDED U/S. 306(4) CR. PC.
ANNEXURE A2(E) STATEMENT OF ABDUL RAHIMANRECORDED U/S. 306(4) CR. PC.
ANNEXURE A3 COPY OF DEPOSITION OF PW 13 VIJAYAN IN CC 7/2007.
ANNEXURE A3(A) COPY OF DEPOSITION OF PW 2 AHAMED IN CC 7/2007.
ANNEXURE A3(B) STATEMENT OF PW 1 ABDUL RAHIMAN TENDERED IN CC 7/2007.
ANNEXURE A4 COPY OF PETITION FILED U/S. 308 CR.
P.C. AGAINST VIJAYAN V.P. ANNEXURE A4(A) COPY OF CERTIFICATE OF PROSECUTOR CERTIFYING THAT V.P. VIJAYAN HAS WILLFULLY CONCEALED ESSENTIAL FACTS AND TENDERED FALSE EVIDENCE.
Crl.M.C.No.5118/201725 ANNEXURE A5 TRUE COPY OF PETITION FILED U/S. 308 CR. PC BY PROSECUTION TO PROSECUTE P.P. ABDU RAHIMAN.
ANNEXURE A5(A) TRUE COPY OF CERTIFICATE ISSUED BY PROSECUTOR THAT TENDERED FALSE EVIDENCE PW1.
ANNEXURE A6 COPY OF PETITION FILED BY PROSECUTION U/S. 308 CR.PC TO PROSECUTE P.P. AHAMED
-A PW-2.
ANNEXURE A6(A) COPY OF CERTIFICATE ISSUED BY PROSECUTOR STATING PW-2 P.P. AHAMED TENDERED FALSE EVIDENCE.
RESPONDENTS' EXHIBITS : NIL
TRUE COPY
PS TO JUDGE