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Crl.M.A. 19201/2016 Exemption allowed subject to just exceptions.

1. Aggrieved by the order of the learned Special Judge dated 5 th October, 2012 on an application filed by the investigating officer for grant of pardon to accused Pankaj Bajaj under Section 306 Cr.P.C., the petitioner who is a co-accused prefers the present petition.

2. The operative portion of the impugned order reads as under:

"3. I have made inquiries from the accused Pankaj Bajaj and have gone through the material on record including his statement u/s. 164 Cr.P.C. recorded by Ms. Sheetal Chaudhary, Ld. MM, New Delhi on 03.10.2012 and 04.10.2012. Accused Pankaj Bajaj has stated that he has voluntarily made the confessional statement u/s. 164 Cr.P.C. before Ld. MM and has truly disclosed the facts relating to the case. He has stated that he is aware about the implications of grant of tender of pardon to him. He has further stated that he will truthfully make full and true disclosure of the facts and circumstances of the case within his knowledge and persons relating to the offence. He has also stated that he will be liable for legal consequences u/s. 308 Cr.P.C. if he will be found guilty, concealing any material fact or giving false statement

3. The challenge to the impugned order by the petitioner is four-fold firstly that the impugned order granting pardon is not a speaking order as it does not consider that Pankaj Bajaj was the main accused and could not be granted pardon, secondly, that the pardon was not granted on the application of the accused which is mandatory under Section 306 Cr.P.C., thirdly, the very fact that the investigating officer filed the application immediately after the statement of the co-accused was recorded under Section 164 Cr.P.C. shows that both the co-accused Pankaj Bajaj and investigating officer were hand in glove and fourthly, the statement of the co-accused was hit by Section 25 of the Evidence Act, hence cannot be used in evidence.

4. Per contra learned counsel for the CBI challenges the very maintainability of the present petition on the ground of delay contending that the petitioner cannot challenge the order dated 5th October, 2012 for grant of pardon after a period of more than four years.

5. A brief exposition of facts before dealing with the legal issues. A charge-sheet was filed for offences punishable under Section 120B IPC read with Sections 7, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short the PC Act) against the officials of ELDECO Group and officers of the Income Tax department, including the petitioner, who was working as Director, Income Tax, Kanpur, pursuant to raid conducted on the ELDECO group of companies in March 2012 which included the residential and official premises of Pankaj Bajaj, Managing Director of group. It is alleged that after the raid, Pankaj Bajaj and Anil Kumar Jaiswal, Advocate to get the matter of income tax evasion settled by illegal means approached the various officials of Income Tax whereafter bribe was paid to the petitioner. The FIR in question was registered on 3rd June, 2012, when a raid was conducted at the house of the petitioner wherein the petitioner was found along with Pankaj Bajaj who according to the case of prosecution delivered ₹30 lakhs. On 3rd and 4th October, 2012 statement of Pankaj Bajaj was recorded under Section 164 Cr.P.C. and on 5 th October, 2012 the investigating officer of CBI filed an application under Section 306 Cr.P.C. seeking full and complete pardon for Pankaj Bajaj who had turned approver. A charge-sheet was filed and cognizance was taken by the learned Special Judge on 23rd February, 2013.

8. The judgment of the Supreme Court in Ashok Kumar Aggarwal (supra) has not dealt with the issue that an application filed by the investigating officer seeking pardon under Section 306 IPC for an accused is not maintainable. Merely because in the said case the application was filed by the approver would be no reason to come to the conclusion that an application by the investigating officer is not maintainable.

9. Section 306 Cr.P.C. reads as under:

"306. Tender of pardon to accomplice.