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Ashok Kumar Aggarwal vs Central Bureau Of Investigation on 10 July, 2001

Delhi High Court
Ashok Kumar Aggarwal vs Central Bureau Of Investigation on 10 July, 2001
Equivalent citations: 2001 CriLJ 3710, 93 (2001) DLT 79, 2002 (61) DRJ 31
Author: R Chopra
Bench: R Chopra


ORDER

Case Note:

Criminal Procedure Code, 1973 – Sections 306, 307 & 308–Approver–Tender of pardon–Power of special Judge–Sessions Judge–Co-accused applied for pardon under section 5(2) of the Act, during investigation of case–Petitioner opposed and sought cross-examination of approver–Whether special Judge has power to record the statement of accused and tender him pardon before filing of challan?–Whether other accused has right to cross-examination the approver at the stage of investigation?–Whether law prohibits tender of pardon to a principal accused?–Power of special Judge and case law discussed–Held, special Judge by virtue of Section 5(2) of PC Act enjoys powers contained in Sections 306 and 307 of Cr.P.C. and can grant pardon before filing of
challenged–Further held, at the stage of investigation, the petitioner has no right io cross-examination the co-accused and cannot intervene or ask turn hearing–Further held, the Law does not prohibit tender of pardon even to a principal accused–Petition dismissed–Prevention off Corruption Act, 1988–Section 5(2).

Prevention of Corruption Act, 1988 – Section 5(2)–Tender of pardon–Stage of investigation–Power of special Judge–Sessions Judge–Co-accused applied for grant of pardon during investigation–Held, Special Judge under Section 5(2) enjoys power contained in Sections 306 & 307 Cr.P.C. and can grant pardon during investigation and before filing challan sheet–The other accused has no right to cross-examine the approver/co-accused or ask for hearing during investigation stage–Petition dismissed.

Held :

At the stage of investigations when an accused applies for pardon and the prosecution also supports him, the matter remains between the Court and the accused applying for pardon and the other accused have no right whatsoever to intervene or ask for hearing. The other accused against whom evidence of the approver is likely to be used, shall have sufficient opportunity to cross-examine the approver when examined in the course of trial and show to the Court that his evidence is not reliable or he is not a trustworthy witness. Whatever material the petitioner intends to use against the approver, he would be entitled to use it against him during trial to discredit him. The law does not prohibit tender of pardon to a principal accused even. The tender of pardon remains within the domain of judicial discretion of the Court before which the request of an accused for tender of pardon is made. Therefore, a co-accused can not be permitted to raise objections against tender of pardon to another accused at this stage.

R.C. Chopra, J.

1. This Criminal Revision under Sections 397/401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Code” only) challenges an order dated 3.5.2001 passed by learned Special Judge, Delhi by which application of the petitioner, for giving him hearing before considering the request of a co-accused for pardon, was rejected.

2. I have heard learned counsel for the petitioner and learned counsel for the respondent.

3. The petitioner is an accused in a case under Section 120B read with Sections 193, 342, 467, 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act” only), which is being investigated by CBI. Abhishek Verma, co-accused of the petitioner, has applied for grant of pardon under Section 5(2) of the Act. The petitioner moved an application before learned Special Judge making several allegations against Abhishek Verma and pleading that he was not a reliable person/witness and as such, no purpose would be served by tendering him pardon. It was also stated that the Investigating Agency was merely trying to save Abhishek Verma and there was sufficient material/evidence for proving the case against the petitioner . The prayer of the petitioner was that the Court should afford him a hearing at the time of considering the question of grant of pardon to accused Abhishek Verma. The application was dismissed by learned Special Judge vide impugned orders holding that the Court was not bound to hear the petitioner in the matter. It was also held that nobody could cross-examine an approver when his statement was being recorded prior to committal proceedings.

4. Learned counsel for the petitioner has vehemently argued that learned Special Judge was wrong in making observations about the cross-examination of the approver in as much as the petitioner had never made a prayer that he be allowed to cross-examine the approver. It is stated that the prayer was for a hearing only. It is also submitted that a plain reading of Section 5(2) of the Act reveals that the Special Judge, while recording statement of an accused and tendering him pardon, is deemed to be acting under Section 307 of the Code, which relates to the tender of pardon by the Sessions Court after commitment of a case. It is also contended that a Special Judge under the Act has no powers to record statement of a co-accused or tender him pardon before a challan is filed. It is submitted that recording of the statement of the approver and tender of pardon under Section 5(2) of the Act are judicial proceedings and as such, a co-accused has a right to be heard.

5. Learned counsel for the respondent, on the other hand, submits that Section 5(2) of the Act provides for recording of the statement of an approver and tender of pardon at the stage of investigation as well as at the stage of trail after filing of the challan and this provision does not limit the powers of the Special Judge to the stage to trial only, which commences after filing of challan. It is submitted that Section 5(2) of the Act, for the purposes of sub-sections (1) to (5) of section 308 of the Code only deals with tender of pardon under Section 307 of the Code. He submits that recording of statement of an approver and tender of pardon after filing of the challan may be a judicial proceeding giving right to a co-accused to be heard but recording of the statement and tender of pardon a the stage of investigations does no vest a co-accused with any such right and the matter remains between the Court and the accused only.

6. In order to properly appreciate the rival contentions made by learned counsel for the parties, it would be appropriate to consider the relevant provisions, which read as under:-

Section 306 of Code of Criminal Procedure: 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 disclosure of the whole of the circumstances within his knowledge r elative 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 friable 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-clause (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 friable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a court of Special Judge appointed under t he Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is friable exclusively by that court:

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

307. Power to direct tender of pardon-

At any time after commitment of a case but before judgment is passed, the court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to , any such offence, tender a pardon on the same condition to such person.

Section 5 of the Prevention of Corruption Act, 1988; Procedure and powers of special Judge

(1) A special Judge may take cognizance of offence without for trial and, in trying the accused being committed to him persons, shall follow t he procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates.

(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have ben directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the who circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof an any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under section 307 of the Code.

(3) Save as provide in sub-section (1) or sub-section (2) the provision of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the court of the special Judge shall be deemed to be a Court of Session and the person conduction a prosecution before a special Judge shall be deemed to be a public prosecutor.

(4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provision of sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall , so far as may be , apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.

(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.

(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944).

7. Learned counsel for the petitioner has raised following three questions for consideration of this Court:-

(a) Whether the provisions contained in Section 5(2) of the Act vest the Special Judge with powers to tender pardon prior to the stage of filing of the chargesheet?

(b) Whether a co-accused has a right to be heard on the question of tender of pardon to a co-accused?

(c) Whether tender of pardon can be g ranted to an accused, who is absolutely unreliable, untrustworthy and whose statement would be of no help to the prosecution?

8. Addressing on question (a), learned counsel for the petitioner has vehemently argued that a plain reading of Section 5(2) of the Act makes it clear that a Special Judge under the Act with a view to obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence can tender pardon only after filing of the chargesheet as in the case sessions Court acting under Section 307 of the Code after commitment of a case. Learned counsel argues that Section 5(2) of the Act does not vest a Special Judge with powers under Section 306 of the Code so as to enable him to tender pardon to an accused prior to the filing of the chargesheet. This argument is primarily base don the words used in the last lines of sub-section (2) of Section 5, which say that any pardon tendered under Section 5(2) of the Act shall be deemed to have been tendered under Section 307 of the Code. It is true that Section 5(2) of the Act by a deeming clause, as stated above makes the pardon as if it has been tendered under Section 307 of the Code, but this deeming clause is related to sub-sections (1) to (5) of Section 308 of the Code only which lay down the mode for use of the statement of an approver against him when he is found to be willfully concealing something, or giving false evidence and not complying with the conditions on which tender of pardon was made. Therefore the deeming provision n Section 5(2) of the Act, which speaks of Sections 307 and 5(2) of the Code is in no way referrable to the recording of the statement or tender of pardon, by is in connection with Section 308 of the Code only. Sub-section (1) of Section 5 of the act specifically authorises and empowers a Special Judge to take cognizance of the offence under the Act without commitment of the case to him for trial and says that he shall follow the procedure prescribed under the code of the trial of a warrant case by the Magistrate. Sub Section (3) of Section 5 further clarifies that provisions of Code apply to the proceedings before a Special Judge so far they are not inconsistent with the Act. Thus a Special Judge trying offence under the Act has dual powers of Sessions Judge as well as of Magistrate and controls and conducts the proceedings under the Code prior to filing of the chargesheet as well as after the filing of chargesheet for holding trial. A Special Judge is fully vest with the powers under Section 167 of the Code to remand an accused to police custody or judicial custody before filing of the chargesheet and thereafter hold trial as a sessions Court without there being any committal. It is not appreciable that when in a Sessions case, statement of an approver can be recorded and pardon can be tendered at the stage of investigation or enquiry itself by a Magistrate by virtue of Section 306 of the Code why the legislature should have thought of curbing and curtailing the powers of a Special Judge in this regard, who deals with much more serious and heinous offence. Special Judge in fact enjoys more powers than a Sessions Judge acting under the Code ford the reason that the Special Judge is vested with the powers of not only Sessions Court, but of the Magisterial Court also for the purposes of the offence under the Act. He conducts entire proceedings against an accused from the date of his arrest till the final conclusion of the trail. A plain reading of Section 5(2) of the Act shows that the legislature has in no way restricted the powers of a Special Judge in the matter of tender of pardon to any stage of the proceedings. Had the legislature intended to do so, it could have specifically laid down in Section 5(2) of the Act that a Special Judge after filing of the chargesheet only may tender pardon to a person concerned with the offence. Learned counsel for the petitioner has not been able to suggest any reason for which an accused under the Act ought not to be tendered pardon at the stage of investigations. In fact tender of pardon at the stage of investigations is more meaningful and result oriented for the investigators. It, therefore, cannot be held that a Special Judge has no powers to record the statement of an accused and tender him pardon before filing of the chargesheet. The Special Judge by virtue of Section 5(2) of the Act enjoys powers contained in Section 306 as well as 307 of the Code.

9. The argument that recording of statement of an accused and tender of pardon are judicial proceedings and as such, a co-accused has a right to be heard, cannot be sustained for the simple reason that judicial proceedings before a Court commence only after filing of the chargesheet and all proceedings prior thereto are merely in relation to investigations. In a judgment of Delhi High Court in M.M.Kochar Vs. The State, , it was clearly held that tender of pardon and its acceptance by t he person concerned is a matter entirely between the Court and the person to whom it is made and to her accused against whom investigations are going on in connection with the said offence, has no right to right to object to the tender of pardon.The Apex Court in case State of U.P. Vs.k Kailash Nath Aggaral, 1973 CrI.LJ. 1196 considered the view taken by Delhi High Court , but did not say that this view was not sustainable. In Prabhat Ranjan Sarkar & Others Vs. The State of Bihar, 1974 CrI.L.J. 957, a learned Single Judge of Patna High Court had also taken the view that in case an order granting pardon is passed during investigations, a co-accused has no right to be heard. The submission of learned counsel for the petitioner that the investigations are almost complete and challan is likely to be filed, do not advance his plea as it cannot be held that the case has gone beyond the stage of investigations. The contention that an earlier application moved on behalf of the accused for tender of pardon was kept pending vide orders dated 3.11.2000 shows that the pardon could be granted only after filing of the chargesheet cannot be accepted. It is thus clear that learned Special Judge was fully justified in declining the request of the petitioner to be heard at the time of granting pardon to the co-accused Abhishek Verma as the tender of pardon is at the stage of investigations only.

10. Learned counsel for the petitioner has further submitted that the accused Abhishek Verma, to whom pardon is likely to be tendered, is on absolutely unreliable and untrustworthy witness and as such, his evidence would be of no help to the prosecution. It is also submitted that the petitioner can show to learned Special Judge that the evidence and material already available on record is sufficient and the evidence of approver is not required in this case, which is being done merely with a view to shield a person, who is the principal accused. Learned counsel of the petitioner argues that in case he is given an opportunity of being heard, he can satisfy learned Special Judge that there are no god grounds for tender of pardon to accused Abhishek Verma. As discussed above, at the stage of investigations when an accused applies for pardon and the prosecution also supports him, the matter remains between the Court and the accused applying of pardon and the other accused have no right what so ever to intervene or ask for hearing. The other accused against whom evidence of the approver is likely to be used, shall have sufficient opportunity to cross-examine the approver when examined in the course of trail and show to the Court that his evidence is not reliable or he is not a trustworthy witness. Whatever material the petitioner intends to use against the approver, he would be entitled to use it against him during trial to discredit him. The law does not prohibit tender of pardon to a principal accused even. The tender of pardon remains within the domain of judicial discretion of the Court before which the request of an accused for tender of pardon is made. Therefore, a co-accused can be permitted to raise objections against tender of pardon to another accused at this stage.

11. In view of the foregoing reason,s this Court is of the considered view that this petition is without any merit. T he impugned order does not suffer from any legal infirmity warranting interference by this Court.

12. The petition, therefore, stands dismissed.

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