Jharkhand High Court
Dipesh Chandak vs State Of Jharkhand Thr Central on 20 April, 2012
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.Rev.No.160 of 2012
Dipesh Chandak...............................Petitioner
VERSUS
State through C.B.I...................... Opposite Party
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr. Ajit Kumar Sinha, Sr. Advocate &
Mr. P.K.Sahai and M.K.Sinha, Advocates
For the C.B.I : Mr.M.Khan, Advocate
3/ 20.4.12. The instant case arises out of one of the cases of the Folder Scam R.C.54(A) of 1996 which had earlier been registered as Doranda P.S. case no.79 of 1996 under Sections 120(B), 420, 467, 468, 471 and 477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 on the allegation that during the period 1982 to 1990, the accused persons entered into a criminal conspiracy and in pursuance thereof, they prepared or caused to be prepared false and forged invoices, on the basis of which huge amount was withdrawn from Doranda Treasury putting the State exchequer to a great loss.
After investigation, the Investigating Officer submitted charge sheet against number of accused persons including the petitioner Dipesh Chandak, who, at the relevant point of time was the proprietor of as many as five firms, had claimed to have supplied the materials to the Department but, in fact, it had never been supplied and still the payments were taken.
Likewise other cases on more or less similar kind of allegations were registered against the petitioner and others. When charge sheet was submitted in R.C.No.20A of 1996 an application was filed on 7.8.1998 on behalf of the petitioner stating therein that he is desirous of making full and true disclosure as to the whole of the circumstances leading to the AHD Scam during 1982 to 1995 and hence, he be granted pardon under Section 306 of the Code of Criminal Procedure 2 and be made approver. On such application, a comprehensive statement of the petitioner was recorded revealing therein modus operandi adopted by the politicians, bureaucrats, Government employees and suppliers for defrauding the State. Upon such disclosure, public prosecutor put before the court that evidence of the petitioner as approver would be of immense help for prosecuting the people involved in the scam, otherwise it would be too difficult to prove the case of criminal conspiracy and, therefore, a prayer was made that statement be taken on record and the petitioner on being granted pardon be made approver in R.C.No.20(A) of 1996. The said prayer was allowed.
Likewise the petitioner on being granted pardon was made approver in six other cases as the modus operandi adopted by the accused persons in defrauding the State was the same. On similar kind of allegations two cases R.C.No.55(A) of 1996 and R.C.No.54(A) of 1996 had also been lodged in which even the accused persons and the witnesses are the same and that the same Investigating Officer after investigating the case had submitted charge sheet on the same day.
When in R.C. No.55(A) of 1996 the petitioner was granted pardon in terms of the provision as contained in Section 306 of the Code of Criminal Procedure an application was filed by the petitioner in R.C.54(A)of 1996 praying therein that the statement made under Section 306 in R.C. No.20(A) of 1996 which was rerecorded in R.C.No.55(A) of 1996 be taken on record and the petitioner be granted pardon. The C.B.I by filing application also made request to grant pardon. But the learned Special Judge, vide its order dated 20.1.2004 rejected the petition holding therein that grant of pardon in series of AHD Scam cases is inconsequential as the petitioner is not concerned in fraudulent withdrawal made by other accused and that the petitioner's involvement is very much there where huge amount has 3 been withdrawn and that nothing is there to show that the charge sheet has been filed on the basis of disclosure made by the petitioner during investigation. On the same day after rejection of the prayer, one application was filed praying therein not to frame charge as he will be challenging the order before the Hon'ble Court. That application was also rejected by holding that tender of pardon can be granted at any stage and as such, if the charge is framed, it will hardly affect the right of the petitioner. The said order dated 20.1.2004 was challenged before this Court in Cr. Rev. No.123 of 2004.
The argument which was advanced on behalf of the petitioner before this Court is that the prosecutor in exercise of its sovereign power, if recommends pardon by treating the accused as an approver, the court could not go into the question whether that was justified or not. In the context of the said submission, a question which fell for consideration was as to whether in no circumstance the court reject the request made by the accused and supported by the prosecution ? However, their Lordships by placing reliance on the decision rendered in a case of State (Delhi Administration) vs. Jaggit Singh[1989 Supp (2) SCC 770] and in a case of Jasbir Singh vs. Vipin Kumar Jaggi [(2001) 8 SCC 289] was pleased to hold that the power to grant pardon is actually vested in the Court and thereby it is not merely a matter of contract between the prosecution and the accused. Having held so their Lordship recorded that good reasons have been given by the Special Judge for refusing the prayer of the accused to treat him as an approver which never calls for interference by the Court.
Further it was recorded that the petitioner has pleaded 'not guilty' to that charge and in that view of the matter, it is not open to the petitioner to pursue his claim to be treated as an approver. In that view of the matter, it was recorded that interference by this Court in revision has become considerably less, even if it has not vanished altogether. 4
That order was challenged before the Hon'ble Supreme Court in Special Leave to Appeal (Cr.) No.10548 of 2004 which was dismissed by observing that we see no reason to interfere.
In course of time, an application was again filed again by the petitioner under Section 306 of the Code of Criminal Procedure read with Section 5(2) of the Prevention of Corruption Act, 1988 on 11.8.2006 for grant of pardon to him on the ground that subsequent to dismissal of the revision application by this Court and Special Leave Petition by the Supreme Court pardon was granted to this petitioner in other six cases and that prosecution could succeed in getting the accused persons convicted in R.C. No.5A of 2000 on the basis of disclosure statement made by the applicant so far conspiracy angle is concerned and that according to observation made by the Hon'ble Supreme Court in a case reported in [(2003) 11 SCC 786] statement under Section 306 of the Code of Criminal Procedure need not to be recorded in each and every individual case as the evidence given in one case may also be treated evidence in the other cases and therefore, statement recorded under Section 306 of the Code of Criminal Procedure of the petitioner in R.C. No.55(A) of 1996 and R.C.No.20(A) of 1996 were relied upon in other cases for grant of pardon in those cases in which prosecution could succeed on the conspiracy aspect of the matter on the basis of the evidence made by the petitioner. Therefore, the prayer was made to grant pardon to the petitioner. That prayer was supplemented by the statement made in the application filed on 12.12.2011. The prayer of the petitioner was supported by the C.B.I on the ground that most of the witnesses examined by the prosecution have not supported the case of the prosecution and therefore, it has become at all more necessary to rely on the statement made by the petitioner under Section 306 of the Code of Criminal Procedure which can be used in this case only when the pardon is granted . However, prayer of the petitioner was rejected by 5 the trial court vide its order dated 6.2.2012 holding therein that earlier such prayer of the petitioner has not only rejected by this Court but also by the Supreme Court. That order is under challenge.
Mr. Sinha, learned Sr. counsel appearing for the petitioner submitted that it is true that earlier prayer of the petitioner for granting him pardon in R.C.No.54(A) of 1996 was rejected but the application has been filed for grant of pardon in the changed circumstances and as such, earlier decision passed by this Court and even by the Supreme Court would not be a bar to grant pardon to the petitioner.
In this regard it was pointed out that the petitioner has been made accused in as many as 13 cases and out of those cases, the petitioner had already been granted pardon in six cases before the prayer for pardon made in connection with R.C.No.54(A) of 1996 was rejected. But subsequently, in rest of six cases, pardon was granted and that the court having noticed, the evidence of the petitioner absolutely in consonance with the statement recorded under Section 306 of the Code of Criminal Procedure, found the petitioner credible and trustworthy and that led to conviction of number of accused persons in R.C.No.5(A) of 2000, 24(A) of 1996, 50(A) of 1996, 51(A) of 1996, 47(A) of 1996 and 52(A) of 1996 and that the petitioner's statement has not only been used in the aforesaid cases but it is being used by the C.B.I in other cases being tried in Patna and Ranch and under this situation, the trial court should have granted pardon to the petitioner particularly when C.B.I by filing affidavit on 11.8.2006 and 11.11.2011 emphatically put before the court that it is only on the basis of disclosure made by this petitioner, the prosecution could be able to prove his case of conspiracy successfully in other fodder scam cases.
Thus, it was submitted that the trial court in the aforesaid circumstances committed illegality in rejecting the prayer and hence, the same be set aside and the petitioner be granted pardon in terms of Section 306 of the Code of Criminal Procedure.
6
Learned counsel appearing for the C.B.I in support of the case of the petitioner did submit that this petitioner did depose in the case in which he has been granted pardon and stood firm in spite of rigorous cross-examination and by virtue of the evidence of this petitioner, the prosecution was able to establish conspiracy angle in other cases successfully and thereby could secure conviction of the accused in number of cases.
In this regard it was stated that statement made by this petitioner under Section 306 of the Code of Criminal Procedure pertains to modus operandi adopted by the politicians, bureaucrats, Officers of the AHD and the suppliers under which State exchequer was put to great loss.
He also revealed the manner in which the bogus invoices were prepared for fraudulent withdrawal from the treasury and has named the persons who shared the booty and as such, statement of this witness was the sheet anchor in all fodder scam cases.
It was also stated that in the instant case as many as 94 witnesses have been examined but virtually they have not supported the case of the prosecution and in such situation, if the petitioner is not granted pardon, his disclosure statement cannot be utilized and the petitioner can not be examined as approver and thereby the prosecution may fail in proving the conspiracy angle of the case and therefore, this is a fit case where pardon can be granted to the petitioner.
Having heard learned counsel appearing for the parties and on perusal of the record, it has already been noted that earlier the prayer for grant of pardon to the petitioner was rejected by the learned trial court for the reason that the petitioner is not concerned in the fraudulent withdrawal made by the firm of other accused, the petitioner was involved in the withdrawal of huge amount on the basis of forged and fake bills and that there is nothing to show that charge sheet has 7 been filed on the basis of disclosure made by the petitioner during investigation and that there has been sufficient materials on the record and as such the evidence of the approver to prove charge may not be required. After the prayer was rejected, a prayer was made not to frame charge but the court below did frame the charge after holding that pardon can be granted at any stage. However, when that order was challenged before this Court in Cr.Rev.No.123 of 2004 a plea was taken that when the prosecution did support the case of the petitioner for granting him pardon, the court should not have rejected the prayer.
In that context, a question was framed as to whether the court in no circumstance could reject request made by the accused and supported by the prosecution ?
His Lordships having relied upon the decisions of the Hon'ble Court referred to above did hold that the power to grant pardon is actually vested in the Court which is amenable to revisional jurisdiction where if the court finds that good reasons are there, that order never calls for any interference. Further the court having found the reasons assigned being good rejected that application. That decision was affirmed by the Hon'ble Supreme Court.
However, subsequently a fresh petition was filed which seems to have been filed in the changed situation as after rejection of the prayer, pardon was granted to the petitioner in six more cases whereas in six cases pardon had been granted before the prayer was rejected and that the evidence of the petitioner as an approver led to conviction of number of accused persons in number of cases, particularly on conspiracy angle and that according to the C.B.I, his evidence has become all the more necessary in this case as an approver as none of the 95 witnesses could support the case of the prosecution of conspiracy.
It be noted that this petitioner, according to the stand taken by the C.B.I, made disclosure of conspiracy aspect which has been 8 hatched amongst the politicians, bureaucrats, and officials of the AHD and supplier to put the State exchequer to a great loss which aspect of the matter is involved in all the cases. Further it does appear that fruitful progress in the investigation of this case was made only when the disclosure was made of conspiracy angle by the petitioner in his statement recorded under Section 306 of the Code of Criminal Procedure.
Thus, it appears that the ground on which earlier prayer of the petitioner for grant of pardon was rejected never holds good as the prosecution has now put forth that on the disclosure made by this petitioner fruitful progress was made in the instant case and that sufficient material has still not come in the trial, and as such, the evidence of this petitioner after being granted pardon would be necessary in the interest of successful prosecution of the trial as prosecution even examining 95 witnesses has not been able to establish the charge fully against the accused persons.
In such situation, when the prosecution in the circumstances stated above thinks that the pardon is in the interest of successful prosecution of the trial, this Court needs not to form other opinion in view of the decision rendered in a case of Lt. Commander Pascal Fernandes vs. State of Maharashtra [(1968) 1 SCR 695] wherein it has been held that the Court needs to indubitably agree to the tendering of pardon and must not take on himself the proprietary as to whether the pardon is to be tendered or not. That decision was subsequently followed by his Lordship in Abu Salem's case [(2010) 10 SCC 179] holding therein that certificate of the public prosecutor is the crucial document to be recognized by the trial court both at the stage of Section 306, while granting pardon and also at the stage of Section 308, while revoking pardon.
Under the circumstances the order dated 6.2.2012 passed in R.C No.54(A) of 1996 is hereby set aside. Consequently, the prayer of 9 the petitioner for declaring him approver by tendering him pardon is allowed in terms of Section 306/307 of the Code of Criminal Procedure read with Section 5(2) of the Prevention of Corruption Act on the condition that the petitioner would make a full and true disclosure of the whole circumstance within his knowledge relating to the offence and would not conceal any relevant fact which may adversely affect the courts proceeding of the case.
Thus, this application is allowed.
( R.R.Prasad, J.) ND/