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.=
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.
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 ofCr.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.=
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.
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.
