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SCR.A/1737/2010 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1737 of 2010
With
SPECIAL
CRIMINAL APPLICATION No. 1903 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
RAJKUMAR
SANGAIAH PANDIYAN - Applicant(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
PARTHIV A BHATT for
Applicant(s) : 1,
PUBLIC PROSECUTOR for Respondent(s) : 1,
MR
YN RAVANI for Respondent(s) : 2,
None for Respondent(s) : 3 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 28/10/2010
ORAL
JUDGMENT(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
As
in both the matters common questions arise for consideration, they
are being considered by this common order.
Petitioners
of respective both the petitions are co-accused in the charge-sheet
filed by CBI against various alleged offenders in connection with
I-C.R.No.5/05 dated 16.07.2007 of ATS Police Station, Ahmedabad and
thereafter, was registered as separate complaint by CBI after the
investigation was transferred under the orders of the Apex Court to
CBI. The charge-sheet against the accused concerned including the
petitioners herein is filed in Special Case No.5/10 before the
learned Additional Chief Judicial Magistrate, Special CBI Court
No.2, Ahmedabad (Rural). The petitioners of Special Criminal
Application No.1737/10 is the original accused No.2 whereas
petitioners of Special Criminal Application No.1903/10 are original
accused No.1 and 5 (hereinafter referred to as
“petitioners/co-accused” for the sake of convenience).
It appears that the original accused No.12 Shri N.K.Amin after
filing of the charge-sheet before the learned Magistrate applied for
pardon under section 305 of the Cr.P.C. by showing a desire to
disclose the whole of the circumstance within his knowledge. The
original accused Nos. 1 and 5 resisted the said application under
section 306 of Cr.P.C. before the learned Magistrate by filing
objections and at that stage, the reference was made by the learned
Magistrate under section 395 of Cr.P.C. to this Court on the aspects
of constitutional validity of section 306 of the Cr.P.C. vide order
dated 26.08.2010. At that stage, the CBI, respondent No.2 herein,
challenged the aforesaid order dated 26.08.2010 passed by the
learned Magistrate for making reference under section 395 of the
Cr.P.C. to this Court. We may record that the reference made by the
learned Magistrate was numbered as Criminal Reference No.2/10. This
Court vide its judgement dated 07.10.2010 in a petition preferred by
CBI challenging the aforesaid order of the learned Magistrate for
making reference being Cr.Misc. Application No.10311/10 after
hearing both the sides had concluded at para 56 and observed that
the power under section 306 of Cr.P.C. are not unguided or arbitrary
and the say of the other co-accused are not required to be
considered nor they have any role to play when the question is to be
considered by the learned Magistrate for grant of pardon, but the
co-accused will have right to cross-examine the accomplice witness
if his statement has been recorded and a further right to
cross-examine in the event such statement is used as an evidence at
the time of trial. It was also observed that the learned Magistrate
is required to decide the application under section 306 of the
Cr.P.c by maintaining the spirit of advancement of interest of
justice. It was also observed that the order by the learned
Magistrate by making reference is by way of misdirection of exercise
of the power and condition for making reference have not been
satisfied
Ultimately,
the order passed by the learned Magistrate was quashed and set aside
in exercise of the power under section 482 of the Cr.P.C.
Consequently, thereafter by a separate order, Reference No.2/10 also
came to be disposed of.
In
the meantime, it appears that Special Criminal Application
No.1737/10 is filed on 08.09.2010 and Special Criminal Application
No.1903/10 is filed on 27.09.2010 before this Court for challenging
the constitutional validity of section 306 of Cr.P.C. contending
that the same is violative of Articles 14, 19, 20 and 21 of the
Constitution of India by invoking the power of this Court under
Article 226 of the Constitution.
We
have heard Mr.S.B. Vakil with Ms. Archana Archarya and Mr.B.B. Naik
with Mr. Parthiv Bhatt, learned counsels appearing for the
respective petitioners. Mr.Y.N. Ravani, learned Special Counsel for
CBI and Mr.K.P.Raval, learned APP for State of Gujarat have appeared
upon the advance copy.
It
was contended by the learned counsel appearing for the respective
petitioners that the basis of the present petitions is the breach of
fundamental rights under Constitution and when such question is
raised of constitutional validity, it is the duty of the Court to
decide the questions of fundamental right. It was submitted that
when the breach of fundamental right is apprehended by the
petitioners, they are well within their rights to prefer petition
and there is no suggestion or no question is raised on the aspect
that the petitions are frivolous. On the aspect of prejudice, it
was contended by the learned counsel appearing for the respective
petitioners that the petitioners need not wait till the decision is
pronounced by the learned Magistrate under section 306 of Cr.P.C.
upon the application made by one of the co-accused Shri Amin,
accused No.12. The petitioners did take steps for preventing the
prejudice by submitting objections to the application and the
learned Magistrate had made the reference but the said order of the
learned Magistrate of making reference on the aspects of
constitutional validity has been set aside by this Court. It was
submitted that the accused concerned including the petitioners have
carried the matter before the Apex Court and the hearing is being
awaited. It was submitted that apart from the aforesaid aspects,
when an independent question is raised for challenging the
constitutional validity of a statute under Article 226 of the
Constitution, this Court may not decline the entertainment of the
petition nor the petition can be rejected on the ground that it is
not maintainable. It was submitted that if a particular provision
of Cr.P.C. which is section 306 in the present case, is
unconstitutional or a stillborn, the action based on the same may
not be permitted by this Court and the petitioners have therefore
locus standi to prefer the present petitions and at present there is
a perfect occasion for the petitioners to maintain the petitions by
challenging the constitutional validity. It was submitted that if
section 306 of the Cr.P.C. is interpreted to mean that co-accused
are not required to be heard before grant of pardon, then it would
violate Article 14 of the Constitution and the same would be against
the settled legal position that all statute which permits exercise
of the power are to be read with the principles of natural justice
and if they are not read with the principles of natural justice, it
would violate Article 14 of the Constitution and the fact situation
of the present case are satisfied on the said aspect. Therefore, it
was submitted that this Court may consider the petition as
maintainable and further process be issued upon all parties to the
proceedings.
We
may record that this Court for the reasons recorded in the above
referred judgement dated 07.10.2010 in Criminal Misc. Application
No.10311/10 at para 56 had recorded the following conclusion:
“(a) Section
306 of Cr.P.C., is clear in itself and in view of the various
decisions of the Apex Court and also of the other High Courts,
including the view expressed by us while interpreting Section 306 of
Cr.P.C., there is no unguided or arbitrary power vested to the
learned Magistrate but are rather for advancement of the interest of
justice.
(b) The
say of the other co-accused is not required to be considered, nor
they have any role to play when the question is to be considered by
the learned Magistrate for grant of pardon after hearing a person
applies for pardon and the prosecution or the investigating
machinery but all the co-accused will have a right to
cross-examination to the accomplice witness if his statement is
recorded before the learned Magistrate and will have further right
of cross-examination if such evidence is thereafter used by the
prosecution at the time of trial for supporting its case or
otherwise at the appropriate stage.
(c) The
learned Magistrate under Section 306 of Cr.P.C., is required to
decide the application made by the A-12, keeping in view the
observations made by us in the above referred judgement and more
particularly by maintaining the spirit of advancement
of interest of justice and in accordance with law.
(d) The
impugned order for making reference by the learned Magistrate is by
way misdirection of the exercise of power and condition for making
reference have not been satisfied.”
It
may also be recorded that in the said decision, various decisions of
the Apex Court as well as of the other High Courts for the inbuilt
mechanism under section 306 of Cr.P.C. and the mode and manner of
exercise of power by the learned Magistrate under section 306 of
Cr.P.C and the observations made on the aspects of constitutional
validity of the said provisions have been considered by us in great
detail and the same are not required to be repeated or referred to
again in the present order.
It
is undisputed position that the petitions invoke the power of this
Court under Article 226 of the Constitution, which is a
discretionary and equitable jurisdiction of this Court under
Constitution.
At
this stage, we may refer to the decision of the Apex Court in the
case of Panchugopal Barua v. Umesh Chandra Goswami reported at AIR
1997 SC 1041 and more particularly the observations made at para 14,
relevant of which reads as under:
“14.
Even otherwise, the grant of relief to the respondent
even on the principles of “justice, equity and good conscience”
which doctrine appears to have been pressed into aid, was on the
facts and circumstances of the case, not permissible. A
Court of equity, it should be remembered, must so act as to prevent
perpetration of a legal fraud. It is expected to do justice by
promotion of honesty and good faith, as far as it lies within its
power. A party seeking relief in equity must come to the Court with
clean hands.” (Emphasis
supplied)
It
was further observed that –
“All
the three Courts, including the High Court, found that plea of the
respondent to be ‘false’ in the suit for specific performance filed
by the respondent. S. L. P. against the judgment and decree, was also
dismissed by this Court. How then could the respondent be found
entitled to any relief in equity, when his defence was based on
falsehood? We have noticed the conduct of the respondent in denying
the title of the appellant herein and putting forward a plea which
has been concurrently found by all the Courts to be false. He,
therefore, certainly did not come to the Court with clean hands.
Thus, even if it be assumed for the sake of argument, that the
principles of ‘justice, equity and good conscience’ underlying the
provisions of Section 60 (b) of the Easements Act, could be attracted
in a given case in the State of Assam where the Easements Act had not
been extended, the conduct of the respondent disentitled him to any
relief on the basis of ‘equity, justice and good conscience’.”
(Emphasis
supplied)
In
State of Maharashtra & Others Vs. Prabhu reported at (1994) 2
SCC 481, at para 4, the Apex Court observed thus –
“4.
Even assuming that construction placed by the High Court and
vehemently defended by the learned counsel for respondent is
correct should the High Court have interfered with the order of
Government in exercise of 486 its equity jurisdiction. The
distinction between writs issued as a matter of right such as
habeas corpus and those issued in exercise of discretion such as
certiorari and mandamus are well known and explained in countless
decisions given by this Court and English Courts. It is not
necessary to recount them. The High Courts exercise
control over Government functioning and ensure obedience of rules and
law by enforcing proper, fair and just performance of duty.
Where the Government or any authority passes an order which is
contrary to rules or law it becomes amenable to correction
by the courts in exercise of writ jurisdiction. But one of the
principles inherent in it is that the exercise of power should
be for the sake of justice. One of the yardstick for it is if the
quashing of the order results in greater harm to the society then
the court may restrain from exercising the power.”
(Emphasis
supplied)
It
was further observed at para 5 in the said decision, relevant of
which reads as under:
“Therefore,
even if the order of the Government was vitiated either because
it omitted to issue a proper show cause notice or it could not have
proceeded against the respondent for his past activities the
High Court should have refused to interfere in exercise
of its equity jurisdiction as the facts of the case did not warrant
interference. What could be more harmful to society than
appointing the respondent as member of the Board, a position of
importance and responsibility, who was found responsible for
mass copying at the examination centre of which he was a
supervisor. It shakes the confidence and faith of the society in
the system and is prone to encouraging even the honest and sincere to
deviate from their path. It is the responsibility of the High
Court as custodian of the Constitution to maintain the social
balance by interfering where necessary for sake of justice and
refusing to interfere where it is against the social interest and
public good.”
(Emphasis
supplied)
In
the case of Union of India v. M/s. C. Damani and Co. reported at AIR
1980 SC 1149, it was inter alia observed by the Apex Court at para
20, the relevant of which reads as under:
“The
thorny issue being by-passed for the while, the next question is
whether the constitutionality of the Export (Control) Fifteenth
Amendment Order, 1979 should be examined closely vis-a-vis pre-ban
contracts. Constitutional questions should be considered by courts
only when it is absolutely necessary, not otherwise.”
In
view of the aforesaid legal position, when this Court has already
ruled as per the above referred decisions in Criminal Misc.
Application No.10311/10, that the say of the other co-accused is not
required to be considered nor they have any role to play when the
question is to be considered by the learned Magistrate for grant of
pardon after hearing the person who applies for pardon and the
prosecution or the investigating machinery and all other co-accused
will have right for cross-examination to the accomplice witness if
his statement is recorded before the learned Magistrate and such
accused will have further right of cross-examination if such
evidence is thereafter used by the prosecution at the time of trial
for supporting its case, no prejudice in law at this stage would be
caused to the petitioners herein. When there is no right in law for
hearing to be given before exercise of the power under section 306
of Cr.P.C., there is no prejudice to the petitioners who are
co-accused. Further, it is not a case where the pardon has been
granted, and the statement is recorded and such statement is to be
used against the petitioners/co-accused.
As
observed earlier, even if it is to be used against the co-accused,
the petitioners herein who are other co-accused have a right to
cross-examination by way of defence at the appropriate stage and
inspite of the same, the attempt is made by way of the present
petitions to challenge the constitutional validity of the statutory
provisions of section 306 of Cr.P.C., inspite of the position of
law being made clear by the above referred decision of this Court
that the rights of the co-accused in law are sufficiently protected.
Therefore, it appears to us that there is no bonafide purpose on
the part of the petitioners. Further, if the challenge to the
constitutional validity of the provisions is entertained at this
stage, it may result into throttling the process of further
investigation at the hands of the party who has all rights under law
to defend the case at the appropriate stage. Therefore, it appears
to us keeping in view the peculiar facts and circumstances it is
just and proper to decline invoking of power of this Court under
Article 226 of the Constitution at the hands of the petitioners for
such purpose at this stage.
The
reliance placed by the learned counsel appearing for the petitioners
upon the decision of the Apex Court in the case of Kavalappara
Kottarathil Kochunni v. State of Madras reported at AIR 1959 SC 725,
is ill-founded inasmuch as in the said case before the Apex Court,
it was found by the Court that the person so prejudicially affected
by the law should be entitled to the constitutional remedy. As
observed by us hereinabove, no prejudice is caused to the
petitioners who are co-accused at a stage under section 306 of
Cr.P.C. since their rights are sufficiently protected in law as per
the observations made by us in Criminal Misc. Application
No.10311/10. Therefore, the said decision is of no help to the
petitioners.
The
reliance placed upon the decision of the Apex Court in the case of
Collector of Customs, Madras v. Nathella Sampathu Chetty reported in
AIR 1962 SC 316 is also ill-founded inasmuch as it was not a case
where the question arose before the Apex Court as to whether under
Article 226 of the Constitution, this Court may decline the
entertainment of the challenge to the constitutional validity of the
provisions of the statute at the instance of the party who is not to
suffer any prejudice in law in view of the inbuilt mechanism of the
provisions taking all care to maintain right to defend the case in
the event such evidence is to be used against him.
The
contention that the provisions of section 306 of Cr.P.C. be read
with the principles of natural justice, thereby right of hearing of
the other co-accused so as to meet with the test of Article 14 of
the Constitution is also on a non-existent premise inasmuch as in
the above referred decision of this Court, there is no right under
section 306 of the Cr.P.C. to be heard of the other co-accused.
Further, as observed earlier, there is no prejudice.
In
view of the aforesaid, we find that the petitions does not deserve
to be entertained in exercise of the discretionary equitable
jurisdiction of this Court under Article 226 of the Constitution.
Hence, dismissed.
(JAYANT
PATEL, J.)
(H.B.
ANTANI, J.)
Further
order
After
the pronouncement of the judgement, Mr.S.B. Vakil as well as
Mr.B.B.Naik, learned counsels pray that their clients are desirous to
approach before the higher forum against the present decision and
therefore, the proceedings before the learned Magistrate be stayed
for some time.
We
may record that uptil now, no process has been issued nor any interim
protection has been granted in the present proceedings. When we have
found a case not entertain the petition, such prayer cannot be
granted. Hence, declined.
(JAYANT
PATEL, J.)
(H.B.
ANTANI, J.)
*bjoy
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