Gauhati High Court
Debolal Gorlosa vs The State Of Assam And 2 Ors on 21 December, 2020
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/26
GAHC010259592018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1181/2018
DEBOLAL GORLOSA
S/O- SRI PRABAT GORLOSA, R/O- DIHUR PHONGLO, P.O. AND P.S.
MAIBANG, DIMA HASAO, PIN- 788831, ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY P.P., ASSAM
2:BIKASH THOUSEN
S/O- UPENDRA JHON
VILL- DONGJEN RAJI
P.S. UMANGRANSO
DIST- DIMA HASAO
ASSAM
PIN- 788819
3:DAVID KEMPRAI @ MIPUT RAIJUNG @ ACTION DIMASA
S/O- DEEPON RAIJUNG
R/O- VILL 14 (KILO) MIYUNGPUR
P.S. UMANGRANSO
DIST- DIMA HASAO
ASSAM
PIN- 788819
Advocate for the Petitioner : MR. A M BORA, SR. ADV.
Advocate for the Respondent : MR D SAIKIA, SPL. PP, ASSAM
Page No.# 2/26
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
Date : 21-12-2020 The orders dated 27.07.2018 and 25.09.2018, passed by the learned District and Sessions Judge, Dima Hasao, Assam, in Sessions Case No. 18/2008, under Sections 396 IPC, read with Section 27 of the Arms Act, granting pardon to the accused/respondent No. 3, are challenged in this application filed under Section 482 CrPC, read with Section 401 CrPC, by the present petitioner, who is also an accused in the said case.
2. Heard Mr. A.M. Bora, learned senior counsel appearing for the petitioner. Also heard Mr D Saikia, learned Special Public Prosecutor, Assam, appearing on behalf of respondent No. 1 and Mr B D Das, learned senior counsel appearing for rest of the respondents.
3. It is submitted that the petitioner is that he is the Chief Elected Member of Dima Hasao Autonomous Council and democratically elected public servant.
4. One Bikash Thousen (respondent No. 2) lodged an FIR before Umrango PS, alleging, inter alia, that on 27.04.2007, at about 11.30 am, his vehicle AS-01-AA-3723 (TATA Sumo) was hired and accordingly they left Haflong for Lanka in the vehicle. One police personnel with arms and two Dimasa persons boarded in the vehicle at Haflong and told they will go to Lanka. On the way before reaching block bazaar, near one bus stop, one of the Dimasa person of vehicle told him to turn the vehicle towards left and go inside and after going inside a group of 7-8 boys wearing army dress with arms stopped the vehicle. He also stated that they talked with one of the Dimasa person of the vehicle and he shake hand and handed over a shoe box to extremist and the extremist took one bundle of one thousand rupees notes.
Page No.# 3/26 Then, extremist put the money inside the container, and also demanded the arms from the PSO, and the PSO was reluctant to hand over but the Dimasa person who hand over the container to extremist asked to hand over the arms and ammunition of the body guard. It was also mentioned that the persons who asked to hand over the arms ammunition of the PSO, told them not to fear and thereafter, the extremist took the arms ammunition from PSO and fired upon him resulting serious injuries to the person. Immediately, thereafter, extremist fled away towards down side and both Dimasa Person run towards up, i.e., main road. The extremist also took away the keys of his vehicle and also told him to flee away from the place and let the body-guard die. Hence the case.
5. The FIR was registered as USO PS Case No. 22/07, under Sections 120 (B)/120/121/121(A)/109/326/307/427/395 IPC, read with Section 27 of the Arms Act and was subsequently re-registered as Diyungmukh PS Case No. 7/2008, under Sections 120(B)/120/121/121(A)/109/326/307/427/395 IPC, read with Section 27 of the Arms Act and was investigated into by the investigating agency.
6. The investigating agency after the completion of the investigation filed the charge- sheets against (1) Sri David Kemprai @ Action Dimasa, (2) Sri Athan Hafila @ Daku Singh Dimasa, (3) Sri Debolal Garlosa @ Denial Dimasa, (4) Mourang Dimasa under Sections 120(B)/121/121(A)/323/396/427 of IPC, read with Section 27 of the Arms Act and Section 5 of the Explosive Substances Act and against accused (5) Sri Bhadramani Langthasa, (6) Prafulla Phanglo, (7) Sri Rajendra Daulagupu, under Sections 120 (B)/121/121(A)/396/115 of IPC. The investigating officer further requested that the accused David Kemprai @ Maiput Raijung @ Action Dimasa may be considered as the approver in the instant case. The said prayer of the IO to consider the accused David Kemprai @ Miput was allowed by order dated Page No.# 4/26 06.08.2008.
7. In the course of trial, on 06.11.2013, charge under Section 396 IPC, read with Section 27 of the Arms Act was framed against Atong Hatila and Debolal Gorlosa, (present petitioner) and charge under Section 396/111 of IPC was framed against rest of the accused, Bhadramani Langthasa, Rajendra Daulagupu and Prafulla Phonglo, to which they pleaded not guilty and the case proceeded for trial. The proposed approver, David Kemprai, absconded at that point of time and no charge was framed against him, but subsequently, he was taken into custody. The said accused/approver filed a petition before the trial Court on 19.03.2018, to grant him pardon and status of approver under Section 306 of IPC, but on the same day, he also expressed his unwillingness to become approver and the petition was not pressed by the learned engaged counsel. The learned trial Court vide order dated 24.05.2018, hold that as the said accused David Kemprai has been appointed as approver at the time of filing charge sheet and as such, no charge is required to be framed against him. Subsequently, on 27.07.2018, the learned trial Court granted the status of approver to the said accused, David Kemprai, and directed him to be treated as a prosecution witness and his statement on oath was also recorded.
8. The petitioner, herein, being highly aggrieved with the aforesaid order, granting pardon and status of approver to the co-accused, filed a petition before the trial Court to cancel the aforesaid order and the learned trial Court rejected the prayer vide order dated 25.09.2018.
9. In the present petition, above order of the learned trial Court, granting pardon as well as rejection of the prayer made by the petitioner to cancel the order has been challenged on the following grounds:-
Page No.# 5/26 Ø The order of granting pardon to the accused suffers from inherent irregularities and illegalities and the same is not tenable in the eye of law and has caused grave prejudice to the other accused, including the petitioner.
Ø The learned trial Court committed grave error in law as well as facts by granting approver status to the accused, even after the said accused withdrew his prayer to be treated as an approver and approver status under Section 306/307 IPC cannot be granted without his consent.
Ø No charge was framed against the accused and resultantly, his status as an accused stood obliterated and he stood discharged and hence, pardon granted to such a person, who was not an accused at the time of recording his statement on 27.07.2018, is not at all in conformity to the legal provision, as only an accused can be granted pardon under Section 307 CrPC.
Ø The order dated 27.07.2018, suffers from fallacies as the requirement of law, i.e., the reasons for granting pardon has not been recorded and the learned trial Court also failed to consider that there was an unwillingness to become an approver as his petition was not pressed as reflected in the order dated 19.03.2018.
Ø Earlier order dated 06.08.2008, while the learned Court allowed the prayer of the IO to consider the accused David Kemprai as an approver, also suffers from grave irregularities, as no procedural requirement under Section 306 CrPC was followed, as it is bereft of reasons for doing so. The learned trial Court erroneously granted pardon to the accused David Kemprai on 27.07.2018, Page No.# 6/26 reviewing its earlier order dated 06.08.2008 and hence, manifested with grave irregularities. The prayer made by the petitioner to cancel such order, pointing that statutory requirement was not followed while granting pardon was also not considered by the trial Court, which has caused severe prejudice to the present petitioner.
Ø It is challenged that any illegality in the procedure of tender of pardon to an approver is not a mere irregularity, but it may occasion failure of justice and the co-accused can also challenge such non-compliance of procedure at subsequent stage, including the appellate stage.
10. Subsequently, although not pleaded in the petition, the petitioner, herein, also raised the grievances that he has been highly prejudiced and aggrieved by taking of cognizance by the learned trial Court without prosecution sanction as required under the provision of law. It has been urged that the matter being purely question of law one can raise the same even not pleaded earlier. It contends that Section 196 of CrPC provides that no Court shall take cognizance of offence punishable under Chapter VI of the IPC or of a criminal conspiracy to commit such offence, except with a previous sanction of the concerned Government. In the present case, the learned trial Court has completely overlooked the mandate of Section 196 of CrPC, vide its order dated 06.08.2008, while taking cognizance after charge sheet and as in the present case, charge sheet has been filed under Section 121/121 (A) of IPC amongst others, so it was mandatory to obtain prosecution sanction at the time of taking cognizance.
11. Respondent No. 2/informant of the case has submitted that the present petitioner has filed the present petition only for the purpose of delay of trial and there is no legal ground for Page No.# 7/26 interference with the impugned order dated 27.07.2018 by the learned Sessions Judge. It is further submitted that respondent No. 3 has been made approver during the pendency of the trial and there is no illegality in the order passed by the learned trial Court. Hence, the present petition is liable to be dismissed.
12. The respondent No. 3 resisted the case of the petitioner that there is no requirement of framing charge against the person, who has been granted the status of approver and the present petitioner being a co-accused has no right to challenge the order of appointing approver, inasmuch, as he has ample opportunities to cross-examine the approver in the course of the trial. Furthermore, it has been submitted that respondent No. 3 has never denied to be an approver on the basis of the order dated 06.08.2008.
13. It is further submitted that the present petition is not maintainable, inasmuch, as the learned trial Court has followed due procedure as envisaged under Section 306/307 CrPC, while granting the status of approver, vide order dated 06.08.2008 and other orders under challenge and there is no abuse of process of the Court calling for interference. It is also contended that the petitioner has raised the plea of taking cognizance without prosecution sanction , which was not challenged in the present petition or in earlier point of time, hence, not tenable.
14. Mr Bora, learned Senior Counsel for the petitioner has advanced his arguments on the basis of the averments that have been made in this petition that the pardon granted to the co-accused is vitiated by gross irregularities as has been indicated in the grounds mentioned above, as the learned trial Court failed to exercise the power under Section 307 CrPC. It has been pointed out that while considering pardon at the stage of trial under Section 307 CrPC, Page No.# 8/26 conditions enshrined in Section 306 (1) has to be strictly followed by the Court that the accused has to make a full and true disclosure of the whole circumstances, within his knowledge, relating to the offence, but in the present case, no such disclosure statement has been made and the Court has not followed the mandate of law, which has rendered the status of approver, given to the accused, a nullity.
15. In this context, reference has been made to the decision of the Hon'ble Supreme Court rendered in the case of Santosh Kumar Satishbhushan-Vs- State of Maharashtra reported in (2009) 6 SCC 498 and (2006) 6 SCC 728, wherein, it is observed that 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 favour the pardon has been tendered, will make a full and true disclosure of the whole of the circumstances within his knowledge.
16. Further contention is as regards non-obtaining of sanction prior to taking cognizance of the offence and the fact that the accused who was granted pardon was not a charged accused at the time of offence, whereas, the law is settled that the pardon can be granted only to a person, who has been charged with certain offences. In the present case, the accused was not charged at the time of granting pardon by order dated 25.09.2018. It has been submitted that the revisional Court has jurisdiction to interfere with an order of granting pardon by an inferior Court, in case of irregularity in grant of pardon to a co-accused, as has been held in State of UP -Vs- Kailash Nath Agarwal ; AIR 1973 SC 2210. The High Court can suo moto interfere with the order of such granting pardon under Section 401, that has been held by the Apex Court, in (2013) 15 SCC 222; CBI -Vs- Ashok Kumar Agarwal, to examine the correctness, legality and propriety of the findings etc. and to see that justice is done in accordance with recognized principles of criminal jurisprudence. It is on the above context, it Page No.# 9/26 is submitted that co-accused can challenge the order of granting pardon if the same is not passed in compliance with the prescribed procedure.
17. Further, it has also been contended that the entire proceeding conducted by the learned trial Court suffers from various vices as the trial Court, at the time of filing charge sheet, has immediately granted the approver status to the accused David Kemprai in the year 2008, but again in the year 2018, the accused came up with a petition, showing his willingness to be an approver, but even though, the said petition was not pressed, and the learned trial Court recorded his statement with utter violation of the provisions of the Act and more so, that the accused himself expressed his unwillingness to become an approver.
18. Next bone of contention of the learned senior counsel for the petitioner is that there is a blatant violation of statutory provisions as provided under Section 196 CrPC, as charge sheet was filed under Sections 120 (B)/121/121 (A) IPC, but the learned trial Court took cognizance of the offence on 06.08.2008, without prosecution's sanction. Reference has made to the decisions of the Apex Court in (1999) 1 SCC 728; Manoj Raj & Ors. -Vs- State of MP, 2001 Crl. L J 4520; Jamil Akhtar -Vs- State of West Bengal, (1996) SCC Online RAJ 728; Avadh Srivastava -Vs- State to submit that order of taking cognizance without prior sanction from the Government is liable to be quashed as it would amount to abuse of the process of Court and cause injustice to the petitioner. It is stated that it is a statutory bar in taking cognizance by any Court of any offence under Chapter-VI of IPC.
19. Reliance has also been placed upon the decision of the Hon'ble Apex Court (2000) 2 SCC 396; State of HP -Vs- Surinder Mohan & Ors. and decision of the Division Bench of this Court in 2001 (3) GLT 322; Naba Kumar Das -Vs- State of Assam , to submit that the co-
Page No.# 10/26 accused can challenge the irregularities in granting of pardon at the initial stage of the trial.
20. Mr B D Das, learned Senior Counsel for respondent Nos. 2 and 3, has, however, refuted the submission that there is no requirement of framing of charge for granting pardon, as per the provision of law and in this context, he has relied on the decision of (2012) 1 SCC 500; PR/2/42/43 and the decision rendered in (2016) SCC Online Delhi 6551, wherein it has been held that an approver can be made on the basis of the application filed by investigating officer and pardon can be granted even prior to the charge sheet and accordingly, it has been contended that non-framing of charge at the time of granting pardon will not vitiate the proceeding. It is further submitted that as per provision of Sections 306/307 CrPC, at any stage of enquiry and trial, one can be granted pardon. The accused/respondent No. 3 was allowed to be an approver on the prayer made by the IO on 06.08.2008 at the time of filing charge sheet and there is no illegality in the order dated 24.05.2018, wherein, the Court has held that there is no requirement of framing of charge against the approver. Statement of accused has been recorded as approver while granting pardon treating him as a prosecution witness and it does not suffer from any illegalities.
21. The next challenge of the other respondent Nos. 2 and 3 is that the accused has no right to challenge the order of appointing approver.
Learned Senior Counsel, Mr B D Das, has relied upon the decision of 2002 (61) DRJ 31; Ashok Kumar Agarwal -Vs- CBI; to say that the co-accused has no right to challenge the order of appointing approver. In the said case, it has been held that at the stage of investigation, the co-accused has no right to intervene or ask for hearing while pardon is granted. It has been further held that at the stage of investigation, when an accused apply Page No.# 11/26 for pardon and the prosecution also supports him, the matter is between the Court and the accused, applying for pardon, and other accused has no right whatsoever to intervene and ask for hearing. The law does not prohibit tender of pardon to a principal accused even. Tender of pardon remains within the domain of judicial discretion of the Court, before whom, request of an accused for tender of pardon, is made. Therefore, the co-accused cannot be permitted to raise objection for tender of pardon to the other accused at this stage. The learned counsel has relied on the decision rendered in the case of Bangaru Laxman -Vs- State through CBI; (2012) 1 SCC 500 and another, wherein, it has been held that power of granting pardon prior to filing charge sheet is within the domain of judicial discretion of the Special Judge, before whom, such a prayer has been made. On the basis of the conclusion reached in the aforesaid decision, it has been contended that filing of charge sheet or framing of charge is not a sine quanon for granting pardon by exercising judicial discretion under Sections 306/307 CrPC.
22. Relying on the decision of Kunal Singh-Vs- CBI; (2016) SCC Online Delhi 6551, it has been submitted that prosecution is competent to file an application seeking pardon to an accused, who has agreed to be termed as approver and no mala fide can be attributed to prosecution for filing application seeking pardon. Further, contention of the learned counsel for the respondent that once the pardon is granted, the person ceases to be an accused and become a witness, so, there is no requirement of framing of charge against such person. Reference has been made to the decision rendered in the case of A J Peirisis -Vs- State of Madras; reported in (1954) SC 616, State -Vs- Jagjit Singh; (1988) 0 Supreme (SC) 733.
23. Due consideration has been given to the submission of both the parties and the matter of challenge in the present petition. Certain things to be noted in the present case is that the Page No.# 12/26 pardon has been granted after completion of investigation and committal of the case under Section 307 CrPC and not under Section 306, which pertains to the provision of granting pardon during investigation. It is a settled proposition of law that at the stage of investigation, enquiry or trial of the offence, the person to whom, pardon is granted is to be examined for collecting evidence, in terms of provisions of the Section.
24. Section 306 and Section 307 of CrPC read as follows:-
"306-Tender of pardon to accomplice(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this Section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into, or trying the offence, at any stage of the inquiry or trial, may tender 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 principle or abettor, in the commission thereof.
(2) This section applies to-
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 192);
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
Section 307 of CRPC "Power to direct tender of 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.
Page No.# 13/26 The combined reading of the aforesaid provision of law reveals that the accused has to give a statement under Section 306 (4) complying certain conditions while recorded during investigation and under Section 307 accused has to give a declaration that he will disclose the whole facts and circumstances before the Court and the Court is to satisfy itself about the same, while allowing such pardon.
The power of the learned Sessions Judge is independent of the provisions contained in Section 306 thereof. Section 307 provides a complete procedure for recording conditions specified in Sub-Section (1) of Section 306. The law mandates the satisfaction of the Court granting pardon, that the accused would make a full and true disclosure 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.
25. While examining the record of the trial Court, following orders are found to be relevant for the purpose of deciding the present petitions. At the time of filing the charge sheet, the Court (learned Sessions Judge) passed the following order on 06.08.2008:-
"06.08.2008 Seen the CS submitted by the IO vide CS No. 2 dated 05.08.2008, against accused (1) David Kemprai @ Miput Raijung @ Action Dimasa, (2) Athen Hafila @ Dake Singh Dimasa, (3) Debolal gorlosa @ Daniel Dimasa, (4) Bhadamoni Longthasa and absconder (5) Prafulla Phaglo, (6) Mourang Dimasa u/S 120(B)/121(A)/323/396/427 IPC, r/w Section 27 of the Arms Act, Section 5 of the ES Act with connected papers.
This case is exclusively triable by Court of Session. The case is transferred to the file of self.
I/O prayed that accused Action Dimasa should be granted approver of the case and will submit the P/S order u/S 14/14 A IPC as soon as received.
Page No.# 14/26 Prayer allowed.
Issue BWA against the absconding accused, Prafulla Phonglo and Howrang Dimasa.
Fix 25.08.2008, for production and copy."
26. On 06.11.2013, the following order was passed by the Court:-
"06.11.2013 Accused Aton Hafila, Debolal Gorlosa, Bhadramoni Langthasa, Rajadra Daulagupu & Prafulla Phanglo present.
Accused, David Kemprai, has become absconder, who has been shown as approver in the charge sheet. Accused Mairang Dimasa @ Amal Hojai already expired. Case against them has been filed.
Case is taken up for consideration of charge against the accused, Aton Hapila, Debolal Gorlosa, Bhadramani Longthasa, Rajendra Daulagupu and Prafulla Phanglo.
On perusal of the Case Diary, charge under Section 396 IPC read with Section 27 of the Arms Act has been framed against Aton Hapila & Debolal Gorlosa. Charge under Section 396/111 of IPC has been framed against Bhadramoni Langthasa, Rajendra Daulagupu and Prafulla Phonglo & explained to them to which they pleaded not guilty.
IO has failed to obtain prosecution sanction from the competent authority in respect of offence under Section 120(B)/121/121(A) and there is no material under Sections 323/427 IPC. Hence no charge has been framed under the aforesaid Section.
Fix 05.12.2013 for evidence. Issue summons to PWs."
27. On 19.03.2018, the Court passed the following order:-
"19.03.2018 CR put up today.
Page No.# 15/26 PO is out of station on official duty.
Accused UTP Miput Rajiyung has filed a petition vide Petition No. 13, u/S 306 of CrPC, 1973, for grant of pardon to the accused petitioner for being treated him as approver.
Fix 20.03.2018, for hearing N.O. Later, The Ld Advocate of accused Miput Rajiyung has expressed unwillingness to pursue the petition under Section 306 of CrPC, 1973"
28. On 24.05.2018, the Court passed the following order:-
"24.05.2018 Accused Athan Hapila, Bhadramoni Lauthasa are present.
Accused Debolal Gorlosa absent with step.
UTP Miput Rajuyung has been produced from Guwahati Central Jail. He is remanded till 25.07.2018. Ask SP to provide escort to produce the UTP on the next date.
Other accused persons namely, Rajendra Daulagupu and Prafulla Phonglo absent without step. Issue W/A against both the accused persons. Also issue notice to the bailor.
It appears from the CS that Miput Rajuyung @ David Kemprai @ Action Dimasa has been appointed as an approver and as such no charge is required to frame against Miput Rajuyung. In view of being an approver in the light of Sections 306/307 CrPC, his bail application is rejected since the accused is already in judicial custody.
Fix 25.07.2018, for appearance."
29. Subsequently, on 27.07.2018, the Court granted pardon to the accused /respondent No. 3, with following order:-
"27.07.2018 Page No.# 16/26 UTP Miput Rajiyung @ Action Dimasa @ David Kemprai has been produced from judicial custody.
He is remanded till 06.08.2018.
The accused who has given his statement on oath as an approver as prayed by the prosecution.
After recording the statement on oath, this court by exercising the power under Section 307 of CrPC, I hereby grant pardon to accused Miput Rajiyung @ Action Dimasa @ David Kemprai, but the accused is warned that at this stage he becomes a prosecution witness and he is bound by oath what he has deposed today in Court.
I, in the light of the above direct the prosecution henceforth, to treat accused Rajuyung @ Action Dimasa @ David Kemprai as a prosecution witness.
Heard learned counsel for accused Miput Rajiyung @ Action Dimasa @ David Kemprai who submit that since Miput Rajiyung @ Action Dimasa @ David Kemprai, who has been granted pardon and he stands as a prosecution witness, he may be released on bail during the pendency of the trial.
At this stage, the learned Prosecutor vehemently opposes the same and submits that though Shri Miput Rajiyung @ Action Dimasa @ David Kemprai has become a prosecution witness in this case, but this Court should not overlook the fact that Shri Miput Raijung @ Action Dimasa @ David Kemprai is facing trial in other cases. Hence, he should not be granted bail. I find sufficient force in the submission made by the learned Prosecutor and hence, I am not inclined to grant bail to Shri Miput Rajiyung "@ Action Dimasa @ David Kemprai at this stage and furthermore, this Court cannot exercise the power u/S 439 CrPC since the accused has already been granted pardon.
If Defence Counsel intends they may cross-examine the approver as PW (A)-4.
Fix 25.09.2018, for evidence.
Issue summons to all PWs excluding IO."
30. On 25.09.2018, when the accused petitioner prayed to cancel the order of approver, Page No.# 17/26 given to the co-accused/Respondent No. 3, the Court passed the following order:-
"25.09.2018 Prafulla Phonglo, Rajendra Daulagupu, Bhadramoni Langthasa are present. Accused Maiput Raijung had been tendered pardon following his evidence on 27.05.2018 and the accused had accepted it.
Accused Athan Hapila and Debolal Gorlosa are absent with steps vide petition No. 816/2018 and 814/2018 respectively.
Seen the petition 813/2018, filed by learned Advocate for Debolal Gorlosa. It is contended by the petitioner in the said petition that accused David Kemprai @ Miput Rajiyung @ Action Dimasa was shown as intended approver in charge sheet No. 2 dt. 05.08.2008. then, subsequently, on 19.03.2018, a petition No. 123/2018 had been filed by said accused under Section 306 of CrPC for granting of pardon and accepting him as a prosecution witness in the capacity of an approver. Later, on 19.03.2018 itself, the counsel for accused David Kemprai @ Miput Rajiyung @ Action Dimasa had expressed his unwillingness to pursue the said petition and the prayer of the counsel was allowed by the Court. Then, subsequently, the case had come up for framing of charge on 24.05.2018 before this Court and on the same date the Court had held that since the said accused had already been made an approver no charge is required to be framed against him and on 27.05.2018, the said accused was granted pardon by the Court as required under law meaning thereby that David Kemprai @ Miput Rajiyung @ Action Dimasa was an accused and as such charges were required to be framed against him.
The learned counsel for accused Debolal Gorlosa had contended in the course of his submission that since charge had not been framed against the accused the accused stands discharged and resultantly, his status as an accused also stood obliterated. The learned counsel further contended in the course of his submission that it is the cardinal principle of criminal jurisprudence that only an accused can be granted pardon under Section 307 of CrPC. Since Action Dimasa @ David Kemprai @ Miput Rajiyung is not an accused his deposition as a prosecution witness thereafter is unacceptable with regard to its legality. The status of the approver granted to David Kemprai @ Miput Rajiyung @ Action Dimasa and his status as an approver should be cancelled.
Page No.# 18/26 Learned PP in the course of his submission on the above petition had drawn the attention of the Court to the provision under Section 307 CrPC and had conte4nded that the expression 'any person' supposed to have been directly or indirectly concerned in or privy to any offence in Section 307 of CrPC does not necessarily mean a person against whom a charge sheet had been submitted or not. It is further contended by the learned PP that the ground for granting a pardon is not the extent of complicity of a person in the offence. The Magistrate has only to be satisfied that he took part in the crime to the extent that he admits and he is in a position to give the true account of what had happened.
Now, having heard the learned counsels for both sides, I am inclined to go back to order dated 06.08.2008 in this case. It appears from the case record that on 06.08.2008, the Court at the relevant point of time had allowed the prayer of the IO in the charge sheet No. 2 dated 05.08.2008 that David Kemprai @ Miput Rajiyung @ Action Dimasa should be granted the status of an approver following receipt of the charge sheet on 06.08.2008. Considering the offences that are exclusively triable by Court of Sessions, the order of the Court dated 06.08.2008 is deemed to have been passed in the capacity of a Magistrate since only Magistrate of the first class including Chief Judicial Magistrate, who can take cognizance of the offences triable exclusively by Court of Sessions and later can commit the same to the Court of Sessions for trial. Thus, order dated 06.08.2008 is deemed to have been passed under Section 306 CrPC.
Now, coming to relevant provision that would be applicable in conformity of the order dated 06.08.2008, is Section 306 of CrPC. Section 306 CrPC contemplates tender of pardon to accomplice which runs as such:-
(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this Section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into, or trying the offence, at any stage of the inquiry or trial, may tender 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 principle or abettor, in the commission thereof.
Page No.# 19/26 (2) This section applies to-
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 192);
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record--
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (1)--
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case--
(a) commit it for trial--
(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.
Now, having perused the Section 306 of CrPC, I find that neither David Kemprai @ Miput Rajiyung @ Action Dimasa had accepted the pardon tendered to him nor his statement had been recorded by the Court, who had taken cognizance of the case exclusively triable by Court of Sessions. Thus, when on 27.05.2018, the statement Page No.# 20/26 of David Kemprai @ Miput Rajiyung @ Action Dimasa in the Court of Sessions, same is deemed to have been recorded in the trial after committal before the Court in Sessions as PW in disregard of the stipulated provision in Sub-Section (4), requiring the Court taking cognizance to record an early statement of the approver after tendering of pardon to the person made approver and the person accepting it before the case is being committed to the Court of Sessions.
Thus, the whole process of tendering pardon to and recording of the evidence of David Kemprai @ Miput Rajiyung @ Action Dimasa on 27.05.2018 having been carried out at the time of trial before the Court of Sessions, the same is deemed to have been done under Section 307 of CrPC since the Court that had passed the order on 06.08.2008, on receipt of the charge sheet had also tried the case as a Sessions Court subsequently after furnishing copies to accused persons.
Section 307 of CRPC contemplates 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 directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.
Section 307 contemplates provision for tendering pardon to a person after the case is committed to the Court of Sessions on the same condition as in Section 306 (1) of CrPC discussed above though not specified in this Section itself, but this position of law had been decided in catena of decisions by the Hon'ble Supreme Court one of such decision is A Devendran -Vs- State; (1997) 11 SCC 720. Apart from 306 (1) CrPC, none of the provisions in Section 306 is applicable to Section 307 of CrPC.
Since this Court cannot be called upon to sit on the revision of its own order as to its legality and validity and as such the prayer of the learned advocate for the accused Debolal Garlosa, vide petition No. 813/2018 for cancellation of the order dated 27.05.2018, tendering pardon to Miput Rajiyung @ Action Dimasa @ David Kemprai could not be entertained and same is rejected.
PW- Mintu Deka is present. He has been examined, cross-examined and discharged.
Also seen the petition of the learned PP for framing additional charge under Section 302 of IPC in view of facts disclosed by the approver David Kemprai @ Miput Page No.# 21/26 Rajiyung @ Action Dimasa in his statement as an approver.
Prayer is allowed since the PM Report of the deceased victim is on record though the IO had not made any prayer subsequently for inclusion of Section 302 IPC.
Now, that the tender of pardon to David Kemprai @ Miput Rajiyung @ Action Dimasa as an approver is deemed to have been granted under Section 307 of CrPC and since detention of the approver till termination of the trial when not on bail is contemplated in Section 306 (4) b of CrPC and not in Section 307 of CrPC. David Kemprai @ Miput Rajiyung @ Action Dimasa is to remain on PR bond as he will be required to be summoned as witness for cross-examination by the defence.
Fixing 03.11.2018, for framing of additional charge."
31. In the instant case, going by the sequence of the order, mentioned above, it is seen that at the time of filing charge sheet on 06.08.2008, the prayer of the IO that the accused David Kemprai may be considered as an approver, which was allowed by the trial Court. Subsequent thereto, accused absconded and the trial Court proceeded with the trial by framing charge against the other accused persons (including petitioner) present before the Court and the Court was of the view that accused David Kemprai has already been made an approver and no charge is required to be framed. Thus, the accused, David Kemprai, who remained absconder for several years, since after filing of charge sheet and against whom, no charge was framed and while the case was at the evidence stage, he was taken into custody in the year 2014, on the strength of warrant of arrest. Then, on 19.03.2018, he filed a petition under Section 306 for grant of pardon and make him approver, but on the same day, the learned counsel for the accused expressed his unwillingness to press the petition which was noted by the Court in the order itself. Thereafter, the Court recorded the statement of the accused on oath under Section 307 CrPC and grant him pardon and make him an approver. Thus, the matter itself reflects that the Court has already treated him as an approver since filing of the charge sheet without examining him, but subsequently again, he has been made approver by granting pardon, whereas, the said accused expressed his unwillingness to become an approver in his petition. The order of the learned trial Court dated 27.07.2018 is totally silent on the above aspect, whereas, it was incumbent on the part of the Court to record the reason for accepting the petition "not pressed" and also not recorded his Page No.# 22/26 satisfaction while granting pardon that the accused will make true and full disclosure of the circumstances within his knowledge, which is the mandate of law under Section 307 CrPC. The record also reveals that such a statement of accused has been recorded without making any query on the part of the Court. Thus, it reflects that the said pardon under Section 307 CrPC was granted without fulfilling the conditions enshrined in Section 306(1) CrPC, while granting status of approver, as has been held in Santosh Kumar Satishbhushan (supra). The learned trial Court overlooked the withdrawal of the application as well as unwillingness of the accused to become approver, and considered him to be an approver without any rationale, that too, after more than 4 ½ months of filing such petition. By the time, he was made an approver by the Court, he was no more an accused in the case as his status as an accused obliterated in view of the earlier order. Such a discrepancy in different orders passed by the Court at different stage manifested grave irregularity in the matter of granting pardon and the violation of the provision under the law as discussed above. The another serious aspect on the matter that the accused has also been examined as a prosecution witness (PW-4) by the Court during the course of trial without such disclosure being made by the accused.
Further, it is also pertinent to note that the respondent No. 3 also failed to explain before this Court as to the reason for recording his statement as approver despite his endorsement in his petition for not pressing the same, which remains cloudy all through and needs to be cleared.
32. The Hon'ble Supreme Court in Lt. Commander Pascal Fernendas -Vs- State of Maharashtra and another; reported in AIR 1968 594 (the decision was rendered prior to amendment of CrPC), has held as follows:-
"In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8(2) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is Page No.# 23/26 for the prosecution to ask that a particular accused, out of several may be tendered pardon. But even where the accused directly applies to the Special Judge, he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prossecuting joins tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the crime or the worst offender."
33. In (2013) 15 SCC 222, CBI -Vs- Ashok Kumar Agarwal (supra), the aforesaid aspect has been discussed as below:-
"Grant of pardon on being sought by the accused and duly supported by the State viz judicial act. While performing this act the Court has to apply its mind and is bound to consider consequences of grant of pardon taking into consideration the policy of the State and to certain extent compare culpability of the person seeking pardon qua-other co-accused. If such person seeking pardon is facing prosecution in a large number of criminal cases, the Court should be aware of such fact situation. However, meticulous examination of each and every point not required as the Court may consider all relevant facts and take prima facie view on basis of same plea that the Court must invariably agree to the tendering of pardon if proposal to pardon originates from prosecution or if prosecution supports it cannot be accepted. Accepting such contention would completely marginalize the role of the Court and take away the discretion of a judge in ensuring a fair trial and doing justice in a criminal case."
34. In Santosh Kumar (supra), it is held that order of pardon cannot be passed mechanically and the court has to apply its mind while exercising such power. Further, in Bawa Faqqir Singh -Vs-King of Emperor, AIR 1938 PC 266, while dealing with grant of pardon it is held that tendering pardon is ajudicial act under special precautions, rules and consequences, which statutes set out.
35. As has been held in the case of A Devendran, followed by the decision of Santosh Page No.# 24/26 Kumar (supra), Section 307 provides a complete procedure for approving the statement of an accomplice, subject only to compliance with the conditions specified in Sub-Section (1) of Section 306. The law mandates to record the satisfaction of the Court granting pardon that the accused would make a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned, whether the principal or abettor in commission thereof. In the instant case, order itself reveals that no such satisfaction of the Court was recorded nor the accused made such declaration, nor the Court recorded any opinion that his evidence will be necessary for the interest of justice. The very object of allowing pardon to be tendered in a case where grave offence is committed by several persons, then by the aid of the evidence of the approver, the offence would be brought to home. If such prayer for pardon comes from the accused and the Court with the aid of the opinion rendered by the prosecuting agency, feels that tender of pardon will be in the interest of successful prosecution of the other offender whose conviction is not easy without evidence of approver, the Court would agree to tender the pardon. But no such exercise was done by the learned trial Court while tendering pardon to the co-accused and the learned trial has simply warned the accused that he is bound by oath what he has deposed before the Court.
36. Bearing in mind the legal principle as discussed above and after going through the statement of the accused approver, this Court is not in a position to approve that the pardon has been granted as per mandate of law and the same is liable to be interfered into for non- compliance of the statutory provisions.
37. So far as the right of co-accused to challenge the status of approver, same is answered in Ashok Kumar Agarwal -Vs- CBI; 2007 (98) DRJ 80, wherein the order of pardon challenged by co-accused, has been interfered into by setting aside the order of tendering pardon granted to the co-accused. By holding that in no uncertain terms, no procedure or action can be in the interest of justice if it is prejudicial to an accused. It speaks that the Court emphasized that the Court is not a mute spectator and keeping in mind the interest of the co- accused persons, he should at least consider that prosecution is not unduly favouring the person, seeking pardon at the cost of the co-accused.
Page No.# 25/26
38. The decision of Bangaru Laxman(supra) relied by the respondent is of no help to the respondent, inasmuch, procedure of granting of pardon is not at all followed in the present case. It was held in the said case that the power of granting pardon prior to filing charge sheet is within the domain of judicial discretion of Special Judge, before whom, such a prayer has been made, that comes under Section 306 CrPC (as during investigation), whereas, in the instant case, pardon has been granted at the stage of trial after committal and the same will come under Section 307 CrPC.
39. A blatant violation of provision has been brought to the notice of the Court, which goes to the root of the trial. The petitioner, herein, already made a challenge to the order of approval before the trial Court and the same has been rightly rejected, as the trial Court cannot review its own order. However, under the provision of Section 482 CrPC, High Court has extraordinary power to step into any such matter to correct the patent illegalities or when some miscarriage of justice is done, to ensure justice so that the trial should proceed in proper manner to arrive at a just conclusion. As in the present case, impact of irregularities/illegalities will affect any conclusion at the end of the trial and on that pretext, such an order needs to be interfered.
40. It is noted that the petitioner has already moved a petition challenging the order of approval, without preferring the revision against the order, but same cannot be a ground to discard the grievances raised herein. The purport of the provision to invoke extraordinary power under Section 482 CrPC and even under Section 401 CrPC is to do complete justice and presence of technicalities would not a bar to ensure proper justice and fair trial in accordance with law.
41. So far as regards the challenge to the cognizance taken without sanction under Section 196 CrPC, it can be noted that the same was not challenged at any earlier point of time when the trial has begun to a large extent. Be that as it may, it is further noted that the learned trial Court has specifically indicated in the order that as the prosecution failed to obtain prosecution sanction, so the cognizance under Sections 120 (B)/121/121 (A) IPC was not taken and cognizance has been taken only under Section 396 IPC, read with Section 27 of the Arms Act.
Page No.# 26/26
42. Obviously, the bar postulates under Section 196 CrPC against taking cognizance of the offence enumerated in the Sections itself, except with prior sanction of the Government and the said bar is against the Court and not against the registration of criminal case or investigation by Police or submission of Police Report under Section 173 CrPC, on completion of the investigation. The Court, finding prima facie case, framed the charge against the accused persons, under the aforesaid Sections of law. Thus, there is no illegality while filing charge sheet against the accused persons nor in the order of the learned trial Court.
43. In the considered opinion of this Court, as the trial Court has not taken cognizance of any of the offence enumerated under Section 196 CrPC, so, there is no violation of the provision as alleged.
44. Having regard to all entirety of the matter, the petition is partly allowed. The impugned orders dated 27.07.2018 and 25.09.2018, passed by the learned District and Sessions Judge, Dima Hasao, Assam, in Sessions Case No. 18/2008, are hereby set aside, with a direction to decide the petition filed by the respondent No. 3 for pardon in accordance with law as discussed above, within a period of one month, on receipt of the certified copy of this order, and having regard to the old pendency of the matter, it is further directed that the trial should be completed within a period of 6 (six) months from today by taking day-to-day hearing.
45. In terms of above, petition stands disposed of.
JUDGE Comparing Assistant