Gujarat High Court
Jahid Kutbuddin Shaikh vs State Of Gujarat on 2 May, 2019
Author: V. P. Patel
Bench: V.P. Patel
R/CR.RA/459/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 459 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE V.P. PATEL
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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 or any
order made thereunder ?
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JAHID KUTBUDDIN SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR MHM SHAIKH(2007) for the Applicant(s) No. 1,2
MR. MITESH R. AMIN, PUBLIC PROSECUTOR(2) for the Respondent(s) No.
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CORAM: HONOURABLE MR.JUSTICE V.P. PATEL
Date : 02/05/2019
ORAL JUDGMENT
1. The present Applicants / Original Accused have preferred this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure (for short "Cr.P.C."), being aggrieved and dissatisfied by the impugned order dated 27.3.2019 passed by the learned Designated Judge, Special Court for Serial Bomb Blast Cases at Ahmedabad (for short "learned Trial Court") below Exhibit No. 8056 in Sessions Case Page 1 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT No. 38 of 2009.
2. Rule. Learned Public Prosecutor Mitesh R. Amin appears and waives service of notice of Rule for the Opponent - State of Gujarat.
3. Considering the nature of case, nature of impugned order, direction of Hon'ble Supreme Court to expedite the Sessions Case pending before the Sessions Court and with the consent of both the learned Advocates for the parties, the matter is taken up for final hearing.
4. Heard learned learned Advocate Mr. M.H.M.Shaikh for Applicant / Original Accused and learned PP Mr. Mitesh R. Amin for the Opponent - State of Gujarat.
Order Under Challenge:
5. The Accused No.23 - Ayaz Saiyed has made an application Exh. 8056 on 11.3.2019 under Section 306, 307 of the Cr.P.C. wherein it is stated that he is an accused of the serial bomb blast case i.e. Sessions Case No. 38/2009. That the complaint was registered at the Shahibag Police Station vide Cri. R. No. 236/2008 and at other places. He was arrested and booked in the said offences. It is further stated that he is directly concerned in or privy to the offence and he is ready and willing to make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offences.
5.1 He narrated whole incident in his application and requested to give him the pardon under Section 306 and 307 of the Cr.P.C. 5.2 The learned Trial Judge has passed an order below Exh.8056 dated 27.3.2019 in Sessions Case No. 38/2009 to grant pardon u/s Page 2 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT 306, 307 to A-23 - Ayaz Rajakbhai Saiyed with a condition that he should make true and correct disclosure of fact on oath as witness and certain other formal procedural terms are required to be followed.
Submission of the Applicants / Accused:
6. That the impugned order passed by the learned trial judge is quite improper, unfair, illegal and contrary to principle of natural justice. That the impugned order passed by the learned trial judge is quite illegal and perverse to the provisions of law and evidence on record which requires the legal interference of this Hon'ble Court. That because the impugned order passed by the learned trial judge accepting the tender of pardon to the said accused is quite improper, unfair, illegal and unconstitutional and amounts to an unfair trial for the reasons.
6.1 That it appears from the records and proceedings pertaining to so called confessional statement of the accused vide Exhibit 8056, the learned trial judge, the investigating agency and the prosecuting agency conducted the proceedings behind the back of learned Advocates for the defence and all the accused concern with regard to Exh.8056. That after the receipt of Application / confessional statement for tender of pardon Exhibit 8056 and after fixing the hearing of application exh.8056, the learned trial judge personally inquired in the jail from the accused concern, and thereafter called the replies of investigating agency and prosecuting agency and after receipt of their replies, heard them without the knowledge and information of the concerned learned Advocates for defence and the concvern accused as per its suggestion and the Page 3 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT suggestion of investigating agency which reflects in the impugned order. That the trial court was quite aware with the stage of proceeding that the said accused had submitted his confessional statement i.e. tender for pardon at the very last stage of recording of evidence I.e. after recording of more than 1130 witnesses and after disclosing of all prosecution evidence, in accordance with charge sheet papers. It is pertinent to state that after passing of about 10 years of recording of evidence adduced by the investigating agency and prosecuting agency, the concern accused had submitted his confessional statement praying to tender the pardon, the contents of the confessional statements, the prayer of accused for pardon, the roll and conduct of the investigating agency and prosecuting agency indicates their collusion and malafide act at a very later stage of recording of evidence. The disclosure of confessional of the said accused is not at a very early stage of recording of evidence of first witness but it is at a very last stage of concluding the evidence.
6.2 That the learned trial judge has erred in appreciating the very object of accepting the tender of pardon to the accused as contemplated under Section 306 and 307 of Cr.P.C. Learned Advocate for Applicant submitted that the object of the scheme of accepting the tender of pardon by the accomplice as contemplated under Section 306 and 307 is to acquire and collect the evidence from the accomplice which was only known to him and was not brought on record by the investigating agency during the investigation of evidence by the trial court. He submitted that from the Exhibit 8056 the learned trial judge only assigned one reason in the impugned order that as per the suggestion of the investigating Page 4 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT agency, through prosecuting agency reply Exhibit 8075 he verified that whether accused made the confessional statement voluntarily or not, and he found that it was voluntarily and he accepted the tender of pardon by the accused. Therefore the only reason based on suggestion of investigation and prosecuting agency and verification there upon cannot be considered as just, legal and sufficient reason to grant the pardon. Learned Advocate for the Applicants / Original Accused have therefore prayed to quash and set aside the impugned order passed by the learned Designated Judge Special Court for Serial Bomb Blast Cases at Ahmedabad below Exhibit No. 8056 dated 27.3.2019 in Sessions Case No. 38 of 2009 accepting to tender the pardon to Accused No. 23 - Ayaz Saiyed as unfair, illegal and unconstitutional. Learned Advocate for the Applicants / Original Accused has further prayed to defer the examination of Accused No. 23 - Ayaz Razakmiya Saiyed as Prosecution Witness till the pending admission hearing and final disposal of the present Criminal Revision Application.
6.3 It is argued by the learned Advocate for Applicant that no reasons are assigned for the satisfaction of the court by the learned trial judge. There should be such evidence by which the conviction of the other accused can be served. No such finding is given by the learned trial judge. If there is no evidence, the judicial discretion not to be exercised. It is submitted that the learned trial judge has mechanically proceeded and granted permission of pardon.
6.4 Learned Advocate of the Applicant has relied upon the following judgments:
(i) 2002 CRL.J. 2375 Page 5 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT Senthamarai v. S. Krishnaraj and Ors. (ii) 2010 (3) GLH 727
Central Bureau of Investigation v. N.K.Amin
(iii) 2013 (15) SCC 222 C.B.I. v. Ashok Kumar Aggarwal Learned Advocate for Applicant therefore requested to allow this Criminal Revision Application and set aside the impugned order the passed by the learned Designated Judge Special Court for Serial Bomb Blast Cases at Ahmedabad below Exhibit No. 8056 dated 27.3.2019 in Sessions Case No. 38 of 2009.
Submission of the Prosecution:
7. Learned Public Prosecution Mr. Mitesh R. Amin for the Opponent
- State of Gujarat has vehemently argued that the order passed by the trial court is just, legal, proper and correct in the eye of law. The trial court has not only assigned sufficient reasons but also made proper verification as regards whether the application of pardon is tendered voluntarily and by free consent. Learned PP has distinguished Section 306 and 307 of Cr.P.C.. It is submitted that Section 306 is applicable before the case is committed to the court of Sessions and Section 307 of Cr.P.C. is applicable after the case is committed. The case on hand is the case arising out of the offences punishable under Sections as stated herein above. The case was committed by the learned Magistrate. It is further argued that the court has to consider only whether the accused is directly or indirectly involved in the case or he or he is privy to the offence, that fact is ascertained by the learned trial court. Considering the gravity of the offence, the learned trial judge has taken care which Page 6 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT is to be required by the law. It is further argued that the present Applicant / Accused has no locus standi to challenge the order granting pardon to Accused No. 23 - Ayaz Saiyed. They (present Applicants) will get the opportunity of cross-examination when the person who is pardoned will be examined as witness. It is further argued that as per Section 307, the reasons are required to be assigned which are mentioned in Section 306 of Cr.P.C. That condition is not applied in this case. Learned PP has relied upon the following judgments:
(i) (2018) 3 GLH 546
Jahid Kutbuddin Shaikh v. State of Gujarat.
(ii) (2010) 3 SCC (Cri.) 1243
State of Maharashtra v. Abu Salem Abdul Kayyum
Ansari and Ors.
(iii) (2009) 2 SCC (Cri.) 1150
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra Merits of the Case:
8. Relevant provisions of law involved in the case are Sections 306 and 307 which reads as under:
"Section 306: Tender of pardon to accomplice - (i) 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 Page 7 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT the commission thereof. ...
(2) ...............
(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) ............. (5) ............. Section 307: Power to direct tender or pardon - 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 directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person."
Facts of the Case:
9. On 26.7.2008 the serial bomb blasts have been taken place in the city of Ahmedabad and some incidents of Bomb plantations took place at Surat City. Therefore about 20 FIRs were registered at the City of Ahmedabad and 15 FIRs were registered at the Surat City for the offences made punishable under Sections 120B, 122, 121, 302, 307, 427 of Indian Penal Code and Explosive Substances Act at different police stations. That on 12.11.2008 the Investigating Agency of the aforesaid crime have submitted the charge sheet against the 94 accused persons (including absconding accused) for the offences punishable under Section 7120 (B), 121(A), 124(A), 153(A)(1)(b), 302, 307, 326, 435, 427, 465, 468, 471 of the IPC and under Sections 3, 5, 6, 7 of the Explosive Substances Act, 1908 Page 8 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT and under Section 10, 13, 16, 18, 19, 20, 38, 40 of the Unlawful Activities (Prevention) Act, 1967 and under Section 25(1) (B) (A), 27 of the Arms Act 1959 and under Section 65, 66 of the Information Technology Act 2000 and under Section 3 and 4 of the Damage to the Public Property Act. Thereafter on different dates several supplementary charge sheets were submitted by the investigating agency pursuant to aforesaid crime and till date 80 accused persons are booked by the investigating agencies who belonged to different parts of the State of India. That the present petitioners are also arrested by the investigating agency on different dates and they are in judicial custody since last more than 10 years.
10.The first contention raised by the Applicants / Accused is that the learned Trial Judge has not recorded reasons as contemplating u/s 306(3)(a) of the Cr.P.C. - What types of reasons expected by the learned Advocate for the Applicants are? According to learned Advocate for the Applicants, the reasons on the satisfaction of the court as to the evidence which would be brought on record by way of confession of the accused to whom the pardon is granted shall be sufficient to convict the other Accused.
10.1 On plain reading of the section, such reasons are required for the Section 306 of Cr.P.C. The Court has to satisfy on the following points:
(a) Any person supposed to have been directly or indirectly concerned in or privy to the offence - In this case the Accused No. 23 - Ayaz Razzakmiya who has applied for pardon is the Accused in the case. He has directly concerned in to the offence.Page 9 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019
R/CR.RA/459/2019 JUDGMENT He is arrested and charge sheeted in Special Case No. 38/2009.
(b) At any stage of the investigation or the Trial - In this case trial is going on and it is pending at the verge of the trial.
(c) 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 relating to the offence and to every other peson concerned. - In this case these facts can be ascertained from the application itself.
10.2 Above facts are ascertained by the learned Trial Court. The facts regarding voluntary disclosure is also ascertained by the learned Trial Court. It is also reflected from the order that the Accused / approver has been charged for different offences with other accused. The Trial is in progress, condition to be put to the accomplice / approver.
10.3 In view of the the above facts, it cannot be said that the learned Trial Court has not assigned the reasons.
11.Per contra, learned PP has submitted that Section 306 of Cr.P.C. is not applicable to this case because the said Section is apply before the commitment of the case u/s 209 of Cr.P.C. It is applicable to the Magistrate or to Special Court.
11.1 The case on hand is a trial conducted after the commitment of case to the Sessions Case u/s 209 of Cr.P.C. Therefore Section 307 of Cr.P.C. is applicable. The conditions mentioned in Section 306 (3)(a) of Cr.P.C. are not applicable. In support of this Page 10 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT contention learned PP has relied upon the following judgments:
(i) (2010) 3 SCC (Cri.) 1243 / (2010) 10 SCC 179 - State of Maharashtra v. Abu Salem Abdul Kayyum Ansari and Ors.
"The Magistrate of the first class, under Section 306, is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but not at the stage of investigation on condition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime. Section 307 vests the court to which the commitment is made, with power to tender a pardon to an accomplice. The expression, `on the same condition' occurring 12 in Section 307, obviously refers to the condition indicated in sub-section (1) of Section 306, namely, on the accused 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."
(ii) (2009) 2 SCC (Cri.) 1150 - Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra.
"Sub-section (4) of Section 306 is procedural in nature. It is necessary to be followed only by a Magistrate as he would not have any jurisdiction to try the case himself. The learned Sessions Judge before whom the case is committed for trial must be informed as to on what basis pardon had been tendered. Section
307 does not contain any such condition. The power of the learned Sessions Judge is independent of the provisions contained in Section 306 thereof. The condition mentioned in Section 307 refers to the condition laid down in sub-section (1) of Section 306, namely that the person in whose 17 favour the pardon has been tendered, will make a full and true disclosure of the whole of the circumstances within his knowledge. The power of a Sessions Court is not hedged with any other condition."
11.2 In view of the above, the contentions raised by learned Advocate for the Applicants fail.
12.Second contention raised by learned Advocate for Applicants is that the Applicants / Accused and other accused have not been Page 11 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT heard while deciding application for pardon finally by Accused No.23.
12.1 This argument and other questions are dealt with by the Hon'ble Madras High Court in case of Senthamarai v. S. Krishnaraj and ors. reported in 2002 Cri. L.J. 2375. The relevant paragraphs reads thus:
"12. It is settled law as laid in Faqir Singh v. Emperor, AIR 1938 PC 266, M.M. Kochar v. Stale, 1969 Crl. L.J.45 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.
13. 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.
14. 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.
15. 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.
16. From these principles laid down in various decisions, it is clear that the other co-accused cannot be competent enough to tell the court that the statement of the person concerned is false and therefore, the pardon cannot be granted. Therefore, the contention with regard to the difference stand taken by accomplice may not deserve acceptance.Page 12 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019
R/CR.RA/459/2019 JUDGMENT
17. Similarly, the accused cannot question the stage at which the pardon has been granted. As a matter of fact, Section 306 Cr.P.C. would provide that the Chief Judicial Magistrate of any Magistrate of the first class inquiring into or trying the offence may tender pardon at any stage of the inquiry or trial.
18. In Narayan Chetanram Chaduary v. State of Maharashtra, , it is held as follows:
"No time limit is provided for recording such a statement and delay by itself is no ground to reject the testimony of the accomplice. Delay may be one of the circumstances to be kept in mind as a measure of caution for appreciating the evidence of the accomplice . Human mind cannot be expected to be reacting in a similar manner under different situations. Any person accused of an offence, may at any time before the judgment is pronounced, repeat for his action and volunteer to disclose the truth in the court. Repentance in a condition of mind differing from person to person and from situation to situation." [emphasis supplied] Therefore, there is no merit in the above contention as well."
12.2 This court in case of CBI v. N.K.Amin, reported in 2011 (2) GLR 1146 has dealt with the question as regard to role of other accused while deciding application u/s 306 or 307 of Cr.P.C. which reads as under:
"56. In view of the aforesaid observations and discussions, the conclusion can be deduced as under:
(a) ..........................
(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 the statement is recorded before the learned Magistrate and will have further right of cross-examination if such evidence is thereafter used by the Page 13 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019 R/CR.RA/459/2019 JUDGMENT prosecution at the time of trial for supporting its case or otherwise at appropriate stage."
12.3 Considering above decision, it can safely concluded that the Applicants / Accused or other accused have no role to play while deciding the application u/s 306 or u/s 307 of the Cr.P.C. It is the matter to be dealt with by person seeking pardon and the court. The role of the other accused will be started only after the deposition in form of chief examination of the approver / accomplice is recorded. The other accused may cross examine the accomplice as per provision of Evidence Act.
13.One another argument is addressed that the approver is got up in collusion with investigating agency and prosecution agency. This argument may not be sustained because the other accused would get opportunity of cross-examination of the approver.
14.Considering the averments made in Criminal Revision Application, arguments advanced by the learned Advocates for the parties, ratio laid down by the Hon'ble Apex Court as well as by this Court in above stated judgments, law point involved in the case, this Court is of the view that the impugned order by which order of tendering a pardon to accomplice is legal, correct and proper. There is no requirement of modification in such order. Hence, this Criminal Revision Application is required to be dismissed and accordingly this Criminal Revision Application is dismissed. Rule is discharged accordingly.
(V. P. PATEL,J) J.N. W Page 14 of 14 Downloaded on : Mon Jun 24 23:58:31 IST 2019