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Saturday, March 29, 2014

Section 5 (2) and 7 of the Prevention of Corruption Act, & Section 306 & 460 of Cr.P.C. - Granted Pardon - sec.164 Cr.P.C. statement of one of the accused was record - prosecution applied for grant of pardon as the accused by becoming approver filled the links and as his role is negligible one - Magistrate tender pardon - later after the cross examination of approver it is challanged before special court that the pardon could have been granted only by the Special Judge under Section 5(2) of the PC Act and not by the Metropolitan Magistrate, being not a designated Court under the PC Act. It was also contended that the Magistrate did not have any power to grant pardon. - High court and Apex court confirmed the trail court order and dismissed appeal = P.C. Mishra …. Appellant Versus State (C.B.I.) & Anr. …. Respondents = 2014 (March . Part) judis.nic.in/supremecourt/filename=41345

 Section 5 (2) and 7 of the  Prevention  of  Corruption  Act, & Section 306  & 460 of Cr.P.C. - Granted Pardon - sec.164 Cr.P.C. statement of one of the accused was record - prosecution applied for grant of pardon as the accused by becoming approver filled the links and as his role is negligible one - Magistrate tender pardon - later after the cross examination of approver it is challanged before special court that the  pardon  could  have  been granted only by the Special Judge under Section 5(2) of the PC Act and  not by the Metropolitan Magistrate, being not a designated Court under  the  PC Act.   It was also contended that the Magistrate did not have any power  to grant pardon. - High court and Apex court confirmed the trail court order and dismissed appeal =

 whether  the
pardon granted by the Metropolitan  Magistrate,  Tis  Hazari,  Delhi,  under
Section 306 Cr.P.C.  to the second Respondent, against  whom  R.C.  No.15(A)
96 DLI dated 29.2.1996 under Section 7 of the Prevention of Corruption  Act,
1988 was registered by the  Central  Bureau  of  Investigation,  is  legally
sustainable.=
 Both  the  accused
persons were arrested by the CBI on  1.3.1996  and,  during  the  course  of
investigation, an application was filed by the co-accused Ravi Bhatt  before
the Special Judge, CBI,  for  recording  his  confessional  statement  under
Section 164 Cr.P.C.,  which  was  marked  by  Special  Judge  to  the  Chief
Metropolitan  Magistrate,  who  assigned  the  same  to   the   Metropolitan
Magistrate and the statement of second Respondent under Section 164  Cr.P.C.
was  recorded  on  7.8.1996.
The  CBI,  on  investigation,  noticed  that  the   second
Respondent was not a leading accused in  the  case  and  it  was  considered
necessary to take him as an approver to prove the various missing  links  in
the chain of circumstantial evidence, which was otherwise not  available  to
the investigating agency.  Consequently, the  CBI  on  24.10.1996  filed  an
application under Section 306 Cr.P.C. before the Special Judge, Tis  Hazari,
Delhi for grant of  pardon  to  the  second  Respondent,  Ravi  Bhatt.   The
Special Judge marked that application  to  the  learned  Chief  Metropolitan
Magistrate for the said purpose, who,  in  turn,  marked  the  same  to  the
Metropolitan Magistrate.

4.    The Metropolitan Magistrate examined the application of  the  CBI  and
passed an order dated 2.11.1996,  in  exercise  of  powers  conferred  under
Section 306 Cr.P.C., holding that it was a fit case where pardon  should  be
granted to the second accused  to  enable  the  prosecution  to  unveil  all
circumstances of the case and to unearth the truth,  stating  the  following
reasons :
      “Accused Sh. Ravi Bhatt is a privy to the  offence.   He  is  not  the
      principal/leading accused in this case.  It is not  mentioned  in  the
      written complaint of the  complainant  that  accused  Sh.  Ravi  Bhatt
      demanded Rs.4000/- from him.  The role  played  by  him,  however,  is
      minimal.  Considering that the matter relates  to  corruption  in  the
      Government Department and no direct independent evidence is available,
      I think it appropriate to obtain evidence of  the  accused,  Sh.  Ravi
      Bhatt in order to prove the various missing links in the chain of  the
      circumstantial evidence which  are  not  otherwise  available  to  the
      investigating agency.   The offence mentioned in the  FIR  is  triable
      exclusively by the Court  of  a  Special  Judge  appointed  under  the
      Criminal Law Amendment Act, 1952 (46 of 1952).”
The above  mentioned  order  was  not  challenged  and  has  attained
finality.=
The Appellant moved an application under the proviso to  Section  234
Cr.P.C. for  the  first  time,  before  the  Special  Judge  on  24.7.2008,
questioning  the  pardon  granted  to  second  Respondent  by  the  learned
Metropolitan Magistrate on 2.11.1996 in exercise of powers conferred  under
Section 306 Cr.P.C.  It was contended  that  the  pardon  could  have  been
granted only by the Special Judge under Section 5(2) of the PC Act and  not
by the Metropolitan Magistrate, being not a designated Court under  the  PC
Act.   It was also contended that the Magistrate did not have any power  to
grant pardon.  The Special Judge rejected the application vide order  dated
31.10.2008 holding that the Metropolitan Magistrate had the power to  grant
pardon during investigation under Section  306  Cr.P.C.  and  even  if  the
Magistrate was not empowered by law to tender a pardon and  the  order  was
passed in good faith, then such an order is  protected  under  Section  460
Cr.P.C. Aggrieved by the same, the Appellant filed Criminal Revision  being
Crl. M.C. No.3514 of 2008  before  the  High  Court  of  Delhi,  which  was
dismissed by the High Court vide its order dated 6.11.2008,  against  which
this appeal has been preferred.=
             In Bangaru Laxman (supra), this Court has stated  that  the  power  of
Special Judge to grant pardon is an unfettered power and  held  that,  while
trying the offences, the Special Judge has dual power of a Special Judge  as
well as that of a Magistrate.  This Court,  while  interpreting  Section  5,
then went on to say as follows :-
      40. Thus, on a harmonious reading of Section 5(2) of the PC  Act  with
      the provisions of Section 306, specially Section 306(2)(a) of the Code
      and Section 26 of the PC Act, this Court is of the  opinion  that  the
      Special Judge under the PC Act, while trying offences,  has  the  dual
      power of the Sessions Judge as well as that of a  Magistrate.  Such  a
      Special Judge conducts the proceedings under the court both  prior  to
      the filing of charge-sheet as well as  after  the  filing  of  charge-
      sheet, for holding the trial.


      41. ………………. Since this Court has already held that the  Special  Court
      is clothed with the magisterial power of remand, thus in  the  absence
      of a contrary provision, this Court cannot hold that  power  to  grant
      pardon at the stage of investigation can  be  denied  to  the  Special
      Court.


      42. In view of the discussion made above, this Court is of the opinion
      that the power of granting pardon, prior to the filing of the  charge-
      sheet, is within the domain of  judicial  discretion  of  the  Special
      Judge before whom such a prayer is made, as in the instant case by the
      prosecution.”


14.    Bangaru  Laxman  (supra),  therefore,   emphasizes   the   concurrent
jurisdiction of the Special Judge as well as the Chief  Judicial  Magistrate
or Metropolitan Magistrate to grant pardon during  investigation,  but  does
not say that the Metropolitan Magistrate has  no  power  under  Section  306
Cr.P.C. to grant pardon during  the  investigation  i.e.  before  filing  of
charge-sheet before the Special Judge. During investigation,  in  our  view,
both the Special Judge as well as the Magistrate acting  under  Section  306
Cr.P.C. have concurrent jurisdiction to  entertain  application  of  pardon,
which facilitates proper  investigation  of  the  crime.   But,  as  already
indicated, after the committal of  the  case,  the  pardon  granted  by  the
Magistrate is not a curable irregularity.

15.   We may, in this regard, refer to Section 460 Cr.P.C. which  refers  to
nine kinds of crurable irregularities, provided they are caused  erroneously
and in good faith.  Irregularity caused while granting pardon is dealt  with
in Section 460(g) Cr.P.C.   The relevant  part  of  that  Section  reads  as
follows :-
      “460. Irregularities which do not vitiate proceedings.


      If any Magistrate not empowered by law to  do  any  of  the  following
      things, namely:-


      (g) to tender a pardon under section 306;


      erroneously in good faith does that thing, his proceedings  shall  not
      be set aside merely on the ground of his not being so empowered.”

       Section  461  Cr.P.C.  speaks   of   irregularities   which   vitiate
proceedings.

16.   We have already held, both the  Magistrate  as  well  as  the  Special
Judge has concurrent jurisdiction in  granting   pardon  under  Section  306
Cr.P.C. while the investigation is going on.  But,  in  a  case,  where  the
Magistrate has exercised his jurisdiction under  Section  306  Cr.P.C.  even
after the appointment of a Special Judge under the PC Act and has passed  an
order granting pardon, the same is only a curable irregularity,  which  will
not vitiate the proceedings, provided the order is  passed  in  good  faith.
In fact, in the instant case, the Special Judge  himself  has  referred  the
application to  Chief  Metropolitan  Magistrate/Metropolitan  Magistrate  to
deal with the  same  since  the  case  was  under  investigation.   In  such
circumstances, we find  no  error  in  Special  Judge  directing  the  Chief
Metropolitan Magistrate or the Metropolitan Magistrate to  pass  appropriate
orders on the application of CBI in granting pardon to second Respondent  so
as to facilitate the investigation.

17.   Appeal lacks merit and the same is dismissed.

2014 (March . Part) judis.nic.in/supremecourt/filename=41345
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                    REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1310 OF 2010

P.C. Mishra                             …. Appellant

                                   Versus

State (C.B.I.) & Anr.                        …. Respondents





                               J U D G M E N T



K.S. Radhakrishnan, J.


1.    We are, in this  appeal,  concerned  with  the  question  whether  the
pardon granted by the Metropolitan  Magistrate,  Tis  Hazari,  Delhi,  under
Section 306 Cr.P.C.  to the second Respondent, against  whom  R.C.  No.15(A)
96 DLI dated 29.2.1996 under Section 7 of the Prevention of Corruption  Act,
1988 was registered by the  Central  Bureau  of  Investigation,  is  legally
sustainable.

2.    The Central Bureau of Investigation (CBI) registered R.C. No.15(A)  96
DLI dated 29.2.1996 under Section 7 of the  Prevention  of  Corruption  Act,
1988 (for short “PC Act”) on receipt of a  written  complaint  on  29.2.1996
from Gulshan Sikri, proprietor  of  M/s  Filtrex  India,  Nangal  Raya,  New
Delhi, against P.C. Mishra, the then Assistant  Commissioner  of  Sales  Tax
(Appeals), Appellant herein, for demanding Rs.4,000/- as bribe for  settling
the appeal filed  against the order of Sales Tax Officer.

3.    CBI, on 1.3.1996, laid a trap and the  accused,  PC  Mishra,  and  his
Reader Ravi Bhatt, second Respondent herein, were  caught  red-handed  while
demanding and accepting the bribe from the  complainant.  Both  the  accused
persons were arrested by the CBI on  1.3.1996  and,  during  the  course  of
investigation, an application was filed by the co-accused Ravi Bhatt  before
the Special Judge, CBI,  for  recording  his  confessional  statement  under
Section 164 Cr.P.C.,  which  was  marked  by  Special  Judge  to  the  Chief
Metropolitan  Magistrate,  who  assigned  the  same  to   the   Metropolitan
Magistrate and the statement of second Respondent under Section 164  Cr.P.C.
was  recorded  on  7.8.1996.   During  the  course  of  investigation,   the
witnesses had been examined and records scrutinized and it  transpired  that
the co-accused Ravi Bhatt had accepted the bribe money for and on behalf  of
the  Appellant.   The  CBI,  on  investigation,  noticed  that  the   second
Respondent was not a leading accused in  the  case  and  it  was  considered
necessary to take him as an approver to prove the various missing  links  in
the chain of circumstantial evidence, which was otherwise not  available  to
the investigating agency.  Consequently, the  CBI  on  24.10.1996  filed  an
application under Section 306 Cr.P.C. before the Special Judge, Tis  Hazari,
Delhi for grant of  pardon  to  the  second  Respondent,  Ravi  Bhatt.   The
Special Judge marked that application  to  the  learned  Chief  Metropolitan
Magistrate for the said purpose, who,  in  turn,  marked  the  same  to  the
Metropolitan Magistrate.

4.    The Metropolitan Magistrate examined the application of  the  CBI  and
passed an order dated 2.11.1996,  in  exercise  of  powers  conferred  under
Section 306 Cr.P.C., holding that it was a fit case where pardon  should  be
granted to the second accused  to  enable  the  prosecution  to  unveil  all
circumstances of the case and to unearth the truth,  stating  the  following
reasons :
      “Accused Sh. Ravi Bhatt is a privy to the  offence.   He  is  not  the
      principal/leading accused in this case.  It is not  mentioned  in  the
      written complaint of the  complainant  that  accused  Sh.  Ravi  Bhatt
      demanded Rs.4000/- from him.  The role  played  by  him,  however,  is
      minimal.  Considering that the matter relates  to  corruption  in  the
      Government Department and no direct independent evidence is available,
      I think it appropriate to obtain evidence of  the  accused,  Sh.  Ravi
      Bhatt in order to prove the various missing links in the chain of  the
      circumstantial evidence which  are  not  otherwise  available  to  the
      investigating agency.   The offence mentioned in the  FIR  is  triable
      exclusively by the Court  of  a  Special  Judge  appointed  under  the
      Criminal Law Amendment Act, 1952 (46 of 1952).”


5.    The above  mentioned  order  was  not  challenged  and  has  attained
finality.  Later, charges were framed under Sections 7  and  13(1)(d)  read
with Section 13(2) of the PC Act against the  Appellant  vide  order  dated
8.2.2000 after getting sanction.  Trial proceeded in the Court  of  Special
Judge  and  evidence  was  concluded  as  against  the  Appellant.   Second
Respondent, Ravi Bhatt, was examined as PW9 by the prosecution and was also
cross-examined by the Appellant.

6.    The Appellant moved an application under the proviso to  Section  234
Cr.P.C. for  the  first  time,  before  the  Special  Judge  on  24.7.2008,
questioning  the  pardon  granted  to  second  Respondent  by  the  learned
Metropolitan Magistrate on 2.11.1996 in exercise of powers conferred  under
Section 306 Cr.P.C.  It was contended  that  the  pardon  could  have  been
granted only by the Special Judge under Section 5(2) of the PC Act and  not
by the Metropolitan Magistrate, being not a designated Court under  the  PC
Act.   It was also contended that the Magistrate did not have any power  to
grant pardon.  The Special Judge rejected the application vide order  dated
31.10.2008 holding that the Metropolitan Magistrate had the power to  grant
pardon during investigation under Section  306  Cr.P.C.  and  even  if  the
Magistrate was not empowered by law to tender a pardon and  the  order  was
passed in good faith, then such an order is  protected  under  Section  460
Cr.P.C. Aggrieved by the same, the Appellant filed Criminal Revision  being
Crl. M.C. No.3514 of 2008  before  the  High  Court  of  Delhi,  which  was
dismissed by the High Court vide its order dated 6.11.2008,  against  which
this appeal has been preferred.

7.    Shri P.C. Mishra, the Appellant, appeared  in  person  and  submitted
that the learned Metropolitan Magistrate has committed  a  grave  error  in
granting pardon to the second Respondent, that too,  without  hearing  him.
Shri Mishra submitted that the order passed  by  the  learned  Metropolitan
Magistrate  on  2.11.1996  is  without  jurisdiction,  since  no  power  is
conferred on him to grant pardon to second  Respondent  as  the  matter  is
already seized before the Special Judge appointed under Section 3 of the PC
Act.  It was pointed out that Section 5(2) of the PC  Act  deals  with  all
matters pertaining to offences under  the  Prevention  of  Corruption  Act,
starting  from  registration  of  FIR  to  passing   of   final   judgment.
Consequently, it was only Special Judge, who could have granted  pardon  to
the second Respondent and not the  Metropolitan  Magistrate.   Shri  Mishra
also placed considerable reliance on the  Constitution  Bench  judgment  of
this Court in A.R. Antulay v. Ramdas Sriniwas Nayak and  another  (1984)  2
SCC  500  and  various  other  decisions  in  support  of  his  contention.
Further, it was pointed out that the Special Act lays down  some  procedure
under which the Special Judge has to function and no other procedure, apart
from what has been prescribed by the PC Act, could be followed.  In support
of his contention reliance was placed on the  judgment  of  this  Court  in
Dilawar Singh v. Parvinder Singh alias Iqbal Singh and  another  (2005)  12
SCC 709 to emphasise the power of the Special Judge under Section  5(2)  of
the PC Act.  Reliance was also placed on the  judgment  of  this  Court  in
Harshad S. Mehta and others v. State of Maharashtra  (2001) 8 SCC  257  and
Bangaru Laxman v. State (through CBI) and another (2012) 1 SCC 500.  It was
also pointed out that since the issue with regard to the jurisdiction could
be raised at any point of time, the contention of the Respondents that  the
order of 1996 was challenged only in the year  2008  cannot  be  sustained.
Further, it was also pointed out that the learned  Metropolitan  Magistrate
had granted pardon under Section 306 Cr.P.C. without issuing notice to  the
Appellant which has caused serious prejudice to him.

8.    Shri Rajiv Nanda, learned counsel appearing for  the  CBI,  submitted
that the application for pardon could be moved by the  prosecution  at  the
stage of investigation, till its culmination and in the  instant  case  the
application for pardon was  moved  by  the  prosecution  at  the  stage  of
investigation and that too after recording  the  statement  of  Ravi  Bhatt
under Section 164 Cr.P.C.   Learned Metropolitan Magistrate, it was pointed
out, has exercised his jurisdiction  to  grant  pardon  under  Section  306
Cr.P.C. at the investigation stage.  The  Special  Judge,  in  the  instant
case, had directed the Chief Metropolitan Magistrate  or  the  Metropolitan
Magistrate to deal with the application for pardon, since the case  was  at
the investigation stage.   In any view, it was submitted, even if there was
some irregularity in the order passed by the Metropolitan Magistrate,  that
irregularity was a curable irregularity in view of Section 460(g) Cr.P.C.

9.    Ms. V. Mohana, learned Amicus Curiae addressed elaborate arguments on
the scope of Sections 306 and 460 Cr.P.C. as well  as  the  powers  of  the
Special Judge under Section 5(2) of the PC  Act.    Learned  Amicus  Curiae
pointed out that power of the  Magistrate  during  investigation  to  grant
pardon is not taken away or deprived by the provisions of the PC  Act.   In
any view, the order passed by  the  Metropolitan  Magistrate  is  protected
under Section 460(g) Cr.P.C. since the Magistrate had acted bona  fide  and
in good faith.   Learned Amicus Curiae  also submitted, assuming  that  the
Special Judge under the PC Act  also  has  power  to  grant  pardon  during
investigation,  that  will  not  take  away  the  inherent  powers  on  the
Magistrate during investigation to grant  pardon  while  exercising  powers
under Section 306 Cr.P.C. Learned Amicus Curiae further submitted that  the
order granting pardon was passed  as  early  as  on  2.11.1996,  which  was
revisable and, since no revision had been filed,  the  order  had  attained
finality and hence the same could not have been challenged by the Appellant
at the fag end of the trial, in which, it was pointed  out,  he  had   been
convicted by the Special Judge vide his judgment dated 24.5.2010.

10.   We are, in this appeal, concerned with the correctness  or  otherwise
of the order passed by the Magistrate in granting pardon exercising  powers
under Section 306 Cr.P.C. during the course of investigation  of  the  case
and before the submission of the charge-sheet  before  the  Special  Judge.
The CBI, as already stated, had filed an application for  grant  of  pardon
before the Special Judge at a stage when investigation was going on and the
Special Judge, in its wisdom, thought it appropriate that  the  application
be dealt with by the Chief Metropolitan Magistrate, since investigation was
not over  and  charge-sheet  was  not  submitted  before  him.   The  Chief
Metropolitan Magistrate, however, assigned the matter to  the  Metropolitan
Magistrate.  Situation would have been different if the  investigation  was
over, charge-sheet had been submitted and the charges were  framed  against
the accused. In our  view,  at  the  stage  of   investigation,  the  power
conferred on the Magistrate under  Section  306  Cr.P.C.  (Section  337  of
Cr.P.C. 1898 Old Code) has not been taken away, even  if  the  offence  can
ultimately be tried by a Special Judge.  Section 306 Cr.P.C. is  applicable
in a case where the order of committal has not been passed,  while  Section
307 Cr.P.C. is applicable after  the  committal  of  the  case  before  the
judgment is pronounced.  This Court in A. Devendran v. State of Tamil  Nadu
(1997) 11 SCC 720 opined that after committal of the  case,  the  power  to
grant pardon vests in the Court to which the case has  been  committed  and
the pardon granted by the  Chief  Judicial  Magistrate  is  not  a  curable
irregularity. For easy reference, we refer to Section  306  Cr.P.C.,  which
reads 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 a pardon to such person on  condition  of
      his making  a  full  and  true  dis-  closure  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.


      (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 1952 );


      (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.”

11.   Power to grant  pardon  enjoined  under  Section  306  Cr.P.C.  is  a
substantial power and the reasons for tendering pardon  must  be  recorded.
It is for the prosecution to ask that a particular accused, out of several,
may be granted pardon, if it thinks that it is necessary in the interest of
successful prosecution of other offenders or else the conviction  of  those
offenders would not be easy.  This Court in State of U.P. v.  Kailash  Nath
Agarwal and others (1973) 1 SCC 751 recognised the power  of  the  District
Magistrate to grant pardon at the investigation stage.  This Court in Kanta
Prashad v. Delhi Administration  AIR  1958  SC  350  had  the  occasion  to
examine the scope of Section 337 and 338 of the old Code (Cr.P.C. 1898) vis-
à-vis the powers of a Special Court  constituted  under  the  Criminal  Law
(Amendment) Act, 1952.  This  Court  held  that,  reading  the  proviso  to
Section 337 and provisions of Section 338 together, the District Magistrate
is empowered to tender a pardon even after a commitment, if  the  Court  so
directs.  It was also held that under Section  8(2)  of  the  Criminal  Law
(Amendment) Act, 1952, the Special Judge has also  been  granted  power  to
tender pardon.  The conferment of this power on the Special Judge in no way
deprives the District Magistrate of his  power  to  grant  a  pardon  under
Section 337 of the Code.  It was held if at  the  time  when  the  District
Magistrate tenders the pardon, the case was not before the  Special  Judge,
then there is no illegality committed by the District Magistrate.

12.    The  scope  of  above-mentioned  provisions  again   came   up   for
consideration before this Court in Kailash Nath  Agarwal  (supra),  wherein
this Court after referring  to  its  earlier  judgment  in   Kanta  Prashad
(supra) held as follows:-


      “It will be noted from this decision that emphasis is laid on the fact
      that the proviso to Section 337 contemplates  concurrent  jurisdiction
      in the District Magistrate and in the Magistrate making an inquiry  or
      holding the trial to tender pardon. It is  also  emphasised  that  the
      conferment of the power to grant pardon on the Special Judge does  not
      deprive the District Magistrate of his power  to  grant  pardon  under
      Section 337.”

13.   In Bangaru Laxman (supra), this Court has stated  that  the  power  of
Special Judge to grant pardon is an unfettered power and  held  that,  while
trying the offences, the Special Judge has dual power of a Special Judge  as
well as that of a Magistrate.  This Court,  while  interpreting  Section  5,
then went on to say as follows :-
      40. Thus, on a harmonious reading of Section 5(2) of the PC  Act  with
      the provisions of Section 306, specially Section 306(2)(a) of the Code
      and Section 26 of the PC Act, this Court is of the  opinion  that  the
      Special Judge under the PC Act, while trying offences,  has  the  dual
      power of the Sessions Judge as well as that of a  Magistrate.  Such  a
      Special Judge conducts the proceedings under the court both  prior  to
      the filing of charge-sheet as well as  after  the  filing  of  charge-
      sheet, for holding the trial.


      41. ………………. Since this Court has already held that the  Special  Court
      is clothed with the magisterial power of remand, thus in  the  absence
      of a contrary provision, this Court cannot hold that  power  to  grant
      pardon at the stage of investigation can  be  denied  to  the  Special
      Court.


      42. In view of the discussion made above, this Court is of the opinion
      that the power of granting pardon, prior to the filing of the  charge-
      sheet, is within the domain of  judicial  discretion  of  the  Special
      Judge before whom such a prayer is made, as in the instant case by the
      prosecution.”


14.    Bangaru  Laxman  (supra),  therefore,   emphasizes   the   concurrent
jurisdiction of the Special Judge as well as the Chief  Judicial  Magistrate
or Metropolitan Magistrate to grant pardon during  investigation,  but  does
not say that the Metropolitan Magistrate has  no  power  under  Section  306
Cr.P.C. to grant pardon during  the  investigation  i.e.  before  filing  of
charge-sheet before the Special Judge. During investigation,  in  our  view,
both the Special Judge as well as the Magistrate acting  under  Section  306
Cr.P.C. have concurrent jurisdiction to  entertain  application  of  pardon,
which facilitates proper  investigation  of  the  crime.   But,  as  already
indicated, after the committal of  the  case,  the  pardon  granted  by  the
Magistrate is not a curable irregularity.

15.   We may, in this regard, refer to Section 460 Cr.P.C. which  refers  to
nine kinds of crurable irregularities, provided they are caused  erroneously
and in good faith.  Irregularity caused while granting pardon is dealt  with
in Section 460(g) Cr.P.C.   The relevant  part  of  that  Section  reads  as
follows :-
      “460. Irregularities which do not vitiate proceedings.


      If any Magistrate not empowered by law to  do  any  of  the  following
      things, namely:-


      (g) to tender a pardon under section 306;


      erroneously in good faith does that thing, his proceedings  shall  not
      be set aside merely on the ground of his not being so empowered.”

       Section  461  Cr.P.C.  speaks   of   irregularities   which   vitiate
proceedings.

16.   We have already held, both the  Magistrate  as  well  as  the  Special
Judge has concurrent jurisdiction in  granting   pardon  under  Section  306
Cr.P.C. while the investigation is going on.  But,  in  a  case,  where  the
Magistrate has exercised his jurisdiction under  Section  306  Cr.P.C.  even
after the appointment of a Special Judge under the PC Act and has passed  an
order granting pardon, the same is only a curable irregularity,  which  will
not vitiate the proceedings, provided the order is  passed  in  good  faith.
In fact, in the instant case, the Special Judge  himself  has  referred  the
application to  Chief  Metropolitan  Magistrate/Metropolitan  Magistrate  to
deal with the  same  since  the  case  was  under  investigation.   In  such
circumstances, we find  no  error  in  Special  Judge  directing  the  Chief
Metropolitan Magistrate or the Metropolitan Magistrate to  pass  appropriate
orders on the application of CBI in granting pardon to second Respondent  so
as to facilitate the investigation.

17.   Appeal lacks merit and the same is dismissed.


                                        ……..……………………J.
                                        (K.S. Radhakrishnan)


                                        ……..……………………J.
                                        (Vikramajit Sen)
New Delhi,
March 27, 2014.

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