Document Fragment View

Matching Fragments

17. In the aforesaid backdrop, it is to be seen as to whether the impugned order suffers from any vice of illegality as contended by the learned counsel appearing for the applicant - accused No.2 ?

18. Before adverting to the issue raised by the learned counsel for the respective parties, it is relevant to refer the legal provision and the principle on the issue settled by the Apex Court.

19. Section 306 of the Cr.P.C., relates to the tender of pardon to an accomplish and the procedure, whereas, Section 307 authorized the court concerned to grant pardon any time after commitment of a case, but before judgment is passed on the same condition to such person as provided under Section 306 of the Code.

28. Section 306 Cr.P.C. is verbatim to Section 337 of the old Code. There is no change at all with respect to the power to grant pardon. More so, exercise of judicial power in relation to grant of pardon is required so as to remove any suspicion of political consideration or to ensure that the pardon is in the interest of justice (Law Commission of India - 48th Report, July 1972). The Constitution Bench in Saravanabhavan and Govindaswamy (supra) considered the issue of veracity/reliability of the evidence of an approver and not who can be made an approver or what is the role of the court while considering the application for grant of pardon.

32. From the aforesaid discussion on the issue, it is evident that the law laid down by this Court in Lt. Commander Pascal Fernandes (supra) and Laxmipat Choraria (supra) still holds the field. In spite of our repeated query, no case where a different view from the R/CR.RA/299/2021 CAV JUDGMENT DATED: 05/08/2021 aforesaid two cases has been taken could be brought to our notice.

33. In view of the above and considering the judgment of the Privy Council in Bawa Faquir Singh (supra), we are of the view that the grant of pardon by a court under Section 306 Cr.P.C. on being asked by the accused and duly supported by the State is a judicial act and while performing the said act, the Magistrate is bound to consider the consequences of grant of pardon taking into consideration the policy of the State and to certain extent compare the culpability of the person seeking pardon qua the other co-accused.

(ii) Grant of pardon by the Court under Section 306 of the Cr.P.C. on being asked by the accused and duly supported by the State, is a judicial act and while performing the said Act, the Magistrate is bound to consider the consequences of grant of pardon, taking into consideration the policy of the State and to certain extent compare the culpability of the person seeking pardon qua the other co-accused (Bava Fakir Singh Vs. King Emperor (AIR 1938 PC