ORDER
T.K. Tukol, J.
1. This is a petition by accused No. 2 in Special Case No. 5 of 1961 on the file of the Special Judge, Belgaum, in which the present petitioner and one Dattatraya Gangdhar Samant stand charge-sheeted for offences punishable under Section 5(2) read with Section 5 (1)(d) of the Prevention of Corruption Act and Section 162 I.P.C.
2. The facts giving rise to the present petition are as follows: the present petitioner filed an application on 17-2-1962 in the Court of the Special Judge, Belgaum for grant of pardon under Section 337 of the Code of Criminal Procedure and treat him as an approver in the case as he was ready and willing to make a full disclosure of the true facts and circumstances relating to the pending prosecution. Dattatreya (Accused No. 1) objected to that application, while the Public Prosecutor expressed his assent on 26-2-1962 to the prayer made by the petitioner. The Special Judge heard the petition on 1-3-1962 and rejected the petition by an order dated 2-3-1962.
During the pendency of that petition, the accused filed another application before the District Magistrate on 27-2-1962 expressing his willingness to disclose all facts of the case as an approver and praying for pardon under Section 337 of the Code of Criminal Procedure. On 2-3-1962 the District Magistrate forwarded the petition to the Deputy Superintendent of Police, Anticorruption, Belgaum, to take action under the proviso to Sub-section (1) of Section 337, if considered necessary. On the same day, the Deputy Superintendent of Police returned back the application to the District Magistrate with his submission requesting that pardon may be granted to the petitioner under Section 33/(1) of the Code. On the next day, the District Magistrate returned the application back to the District Superintendent of Police drawing his attention to the fact that the trial was pending, and requesting him to take the initial action under the provisions already indicated. The Deputy Superintendent returned the application on 12-3-1962 stating that as the trial was pending before the Special Judge and not before the Special First Class Magistrate, the proviso to Section 337(1) of the Code was applicable to that case and that for the ends of justice and in the best interest of the prosecution the District Magistrate can assume jurisdiction and tender pardon to the accused in question. The District Magistrate recorded the statement of the accused on 16-3-1962 and passed an order granting pardon to the petitioner.
3. On 22-3-1962, the Public Prosecutor filed a memo before the Special Judge on behalf of the State submitting that the District Magistrate, Belgaum had tendered pardon to the present petitioner under Section 33711) of the Code of Criminal Procedure for obtaining true evidence in the case on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge in respect of the offence and enclosed a true copy of the order.
The Special Judge fixed it for hearing on 26-3-1962, At the hearing, it was contended on behalf of Dattatreya that the District Magistrate could not grant pardon as the case was triable by the Special Judge constituted under the Criminal Law (Amendment) Act, while the prosecution supported the order passed by the District Magistrate. The learned Judge set aside the order of the District Magistrate on the ground that when the case was pending before him, the District Magistrate could act only on the direction of the Special Judge and that the order passed by him was therefore illegal and without jurisdiction. The learned Judge sought to support his view by relying upon the decision in Kanta Prasad v. Delhi Administration AIR 1958 SC 350.
4. It is against this order that the present petition has been filed. It was submitted that the order passed by the Special Judge was misconceived and contrary to law,’ that he had no jurisdiction to set aside the order passed by the District Magistrate and that the refusal of the petitioner’s application by the Special Judge did not deprive the District Magistrate of his power to act under Section 337(1) of the Code.
5. Anart from the merits of the order passed by the Special Judge, it is manifest that the Special Judge could not have set aside the order of the District Magistrate whose power of granting pardon is concurrent with the power of the Sessions Judge and that the proper course for him was to have made a reference to the High Court for consideration of the propriety and the validity of that order. The Learned Govt. Pleader for the State conceded that the Special Judge was not competent to set aside the order of the District Magistrate and that the view taken by him of the Supreme Court decision was erroneous.
A Special Judge appointed under the Criminal Law (Amendment) Act, 1952, has power under Section 8(2) of the Act to tender pardon to an accused and any pardon so tendered by him shall, for the purposes of Sections 339 and 339-A of the Code, be deemed to have been tendered under Section 338 of the Code. Section 333 of the Code reads as follows:
At any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the Committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person.
6. It is clear from a plain reading of this Section that where a case is pending before the Special Judge or the Sessions Judge, he is competent to tender pardon to any person supposed to have been directly or indirectly concerned with the commission of any offence under trial in his Court. By reason of Section 8(3) of the Criminal Law (Amendment) Act, 1952, the Special Judge shall be a Court of Session for the purposes of the Code and that Act. Vide AIR 1958 SC 350. It is also competent for him where he does not decide to act himself, to ‘order the Committing Magistrate or the District Magistrate to tender a pardon’. The Section, however, does not abridge the power of the District Magistrate under Section 337(1) of the Code, the relevant portion of which reads as follows;
In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years or any offence under any of the following sections of the Indian Penal Code, namely, Sections 161, 165, 165-A, 216-A, 369, 401, 435 and 477-A, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence 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 relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
It is obvious that the District Magistrate can grant pardon in the types of cases mentioned in the Section at any stage of the investigation or trial of the offence, even where the case is exclusively triable by the High Court or Court of Session. There is, therefore, nothing in this Section or in Section 338, which deprives the District Magistrate of his power to grant pardon in a case which is committed to the Court of Session for trial.
7. The decision of the Supreme Court relied upon by the Special Judge seems to have been misconstrued” by him. He has relied upon the following head-note
Reading the proviso to Section 337 and the provisions of Section 338 together, the District Magistrate is empowered to tender a pardon even after the commitment if the Court so directs. Under Section 8(2) of the Criminal Law (Amendment) Act, 1952, a Special Judge has also been granted power to grant 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 and if at the date the District Magistrate tenders pardon the case was not before the Special Judge, then there is no illegality committed by the District Magistrate.” From the facts of that case as mentioned in paragraph 9 of the report, it would appear that at the date the District Magistrate tendered pardon, the case was not before Special Judge. So, their Lordships had no occasion to decide in that case whether a pardon granted by the District Magistrate after a charge-sheet had been filled in the Court of the Special Judge would be legal or not.
In A.J. Peiris v. State of Madras , it was contended before the Supreme Court that after the commitment of the accused to the Court of Session, the only Court which could tender pardon was the Court of the Sessions Judge, and not the District Magistrate who had actually tendered pardon in that case. In dealing with this contention, their Lordships observed:
“By Section 338, Criminal Procedure Code, power is no doubt given after the commitment to the Court to which the commitment is made to tender pardon, before judgment is passed, to any person supposed to have been directly or indirectly concerned with any offence or order the Committing Magistrate or the District Magistrate to tender pardon during the trial of the case but it ‘does not take away power conferred under the proviso to Section 33/(1) of the Criminal Procedure Code, xxxxxxxx. The Proviso contains an additional provision which empowers the District Magistrate to tender pardon where the offences are under inquiry or trial. The present case is covered by the proviso to Section 337 and not by Section 338 of the Criminal Procedure Code.
In that case the Magistrate had committed the accused to the Court of Session on August 4, 1952, while the District Magistrate tendered pardon on August 28, 1952. The Supreme Court held that the tender of pardon by the District Magistrate on August 28, 1952, even after the accused had been committed to the Court of Sessions was valid. It would, therefore, appear to me that the tender of pardon by the District Magistrate in the present case was not void.
8. The present situation of conflict between the order of the Special Judge and the subsequent order of the District Magistrate has arisen because of the tact that neither the present petitioner nor the Police authorities whose opinions were called for by the District Magistrate, informed the latter that an application for pardon had already been filed by the petitioner before the Special Judge and that that Judge had declined to tender pardon on 2-3-1962. It is difficult to understand why a responsible Officer like the Deputy Superintendent of police, in his endorsement on 12-34962, failed to bring that fact to the notice of the District Magistrate. It cannot be disputed that the District Magistrate and the Sessions Judge or the Special Judge have concurrent powers to tender pardon under Sections already referred to.
Unfortunately, the Code does not provide as in Section 435(4) of the Code that ‘if an application under the Section is made either to the Sessions Judge or District. Magistrate, no further application shall be entertained by the other of them’. That provision which deals with the concurrent powers of Revision of the District Magistrate and Sessions Judge, is intended to avoid the passing of conflicting orders by two authorities having concurrent jurisdiction. In the absence of such an express provision, I think the salutary principle to be followed in such cases is that the authority to whom an application is made first should be the authority to grant pardon and the other authority should not accept an application subsequently. It is only by adoption of this principle underlying Sub-section (4) of Section 435 of the Code that a conflict likely to be created by the exercise of the power concurrently by the District Magistrate, and the Sessions or the Special Judge can be avoided. I have already indicated that the order of the District Magistrate is valid but conflicts with an earlier order of the Special Judge. The proper course open to the Special Judge was to have made a reference to the High Court.
9. It has been argued on behalf of the petitioner that pardon once tendered and accepted by the accused cannot be withdrawn. In Mahomed Yusuf v. State ILR (1955) 1 Cal 248, it was held that when a person has accepted the tender of pardon and has been examined as a witness, the only course open to the prosecution was to get a certificate of the Public Prosecutor in terms of Section 339 of the Code, as there was no provision for revoking or forfeiting a pardon in any other instance. The same view was taken by the Sind High Court in Emperor v. Pir Imamkhan AIR 1944 Sind 184. In the present case the evidence of the petitioner has not yet been recorded before the Special Judge as the trial is yet to commence. Therefore, the question of forfeiting the pardon and of trying the petitioner in terms of Section 339 of the Code does not arise.
10. So the question that remains to be considered is whether the order of the District Magistrate should be permitted to prevail as against the order of rejection passed by the Special Judge. The exercise of the power to tender pardon rests on judicial discretion and the Magistrate or the Judge should proceed with great caution and on sufficient grounds, recognising the risk which the grant of a pardon involves of allowing an offender to escape just punishment at the expense of the other accused.
In 1952 Cri LJ 1339 : AIR 1952 Him Pra 57 Ram Chand v. State, it has been held that a Magistrate cannot be said to have exercised a sound discretion in tendering pardon to one of the accused if, besides the approver, there are as many as six eye-witnesses to the crime who had given evidence in that case. In the present case the District Magistrate does not seem to have applied his mind to the facts of the case. On going through the office note seeking for orders whether pardon be granted to the present petitioner, the District Magistrate directed as follows:
“Yes. Please put up draft order.” From the record it does not appear to me that the District Magistrate really applied his mind to the facts of the case to come to the conclusion that the case justified grant of pardon to the accused. On the other hand, the learned Special Judge has gone through the record of the case produced by the prosecution in the form of statements of persons proposed to be examined as witnesses and recorded by the Police and has come to the conclusion that it was not a case for granting pardon. He has observed
A perusal of the record in this case shows that there is good deal of evidence collected by the prosecution against accused No. 2 and to a lesser extent against accused No. 1. It seems to me that this application is made by accused No. 2 to escape from the consequences of trial and also indirectly to help accused No. 1 and see that he and accused No. 1 will escape from legal punishment.
The learned Government Pleader who has appeared on behalf of the State does not support the order of the District Magistrate.
It was argued by Mr. H.F.N. Reddy on behalf of accused No. 1 that the order of the Special Judge has become final as it was not challenged in Revision. That is really so. Even otherwise, it has not been shown to me how the order of the District Magistrate, though within his competence, obtained by suppressing relevant facts, deserves to be retained in the interest of justice and fairplay to both the accused in the case.
11. For all the reasons recorded above, I set aside the order passed by the District Magistrate and direct the trial to proceed according to law, as if the petitioner has not been granted any pardon. The petition is rejected.
