PETITIONER: THE STATE Vs. RESPONDENT: HIRALAL G. KOTHARI AND OTHERS DATE OF JUDGMENT: 30/11/1959 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. IMAM, SYED JAFFER KAPUR, J.L. CITATION: 1960 AIR 360 1960 SCR (2) 355 ACT: Criminal Law-Pardon-Conspiracy and allied offences Tender of Pardon of approver for main offence-Separate trial of other accused for subsidiary offence-Examination of approver as such for subsidiary offence-Legality-Code of Criminal Procedure, 1898, (Act V of 1898), ss. 339, 377(1). HEADNOTE: On March 9, 1956, a conspiracy to divulge the budget proposals on receiving valuable consideration was discovered and a case was registered under s. 165A of the Indian Penal Code, s. 5(2) of the Prevention of Corruption Act, 1947, s. 5 of the Official Secrets Act, 1923, and s. 120B of the Indian Penal Code. Investigation started on March 10, 1956, and thereafter pardon was tendered to M by the Additional District Magistrate under s. 337 of the Code of Criminal Procedure. Owing to technical legal difficulties a complaint under s. 5 of the Official Secrets Act read with s. 120B of the Indian Penal Code was filed against the persons involved and proceedings began before a magistrate on this complaint. In the course of these proceedings the prosecution wanted to examine M as an approver, but the accused persons objected that as the proceedings before the magistrate were only under s. 5 of the Official Secrets Act read with S. 12 OB of the Indian Penal Code and as no pardon could be tendered under s. 337 of the Code of Criminal Procedure for these offences, M could not be treated as an approver but could be examined only as an ordinary witness. It was contended for the prosecution that as the person to whom pardon was tendered was expected to tell the whole truth including details of other subsidiary offences committed in the course of the commission of the offence for which pardon was tendered, such pardon must be held to include the subsidiary offences though not of the nature mentioned in s. 377(1), and therefore M could be considered as an approver in the present proceedings. Held, that a pardon under s. 377(1) of the Code of Criminal Procedure could be tendered only with respect to the offences mentioned therein and that as s. 5 of the Official Secrets Act read with s. 120B of the Indian Penal Code was not covered by the words of s. 337(1) no pardon could be granted for an offence of this nature. Consequently, as the proceedings before the magistrate were only with respect to these offences, M could not be treated as an approver for the purpose of these proceedings. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 25 to
27 of 1958.
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Appeals from the judgment and order dated June 25, 1957, of
the Punjab High Court, in Criminal Revisions Nos. 184-D,
185-D and 186-D of 1956, arising out of the judgment and
order dated October 23, 1956, of the Sessions Judge,
Delhi, in Criminal Revision Applications Nos. 249, 250 and
251 of 1956.
Bipin Behari Lal and R. H. Dhebar, for the appellant.
G. C. Mathur and I. N. Shroff, for the respondent in Cr. A.
No.25 of 1958.
A. G. Ratnaparkhi, for the respondent in Cr. A. No. 26 of
1958.
Respondent in Cr. A. No. 27 of 1959 did not appear.
1959. November 30. The Judgment of the Court was delivered
by
WANCHOO J.-These three appeals arise out of three
certificates granted by the Punjab High Court in a criminal
matter. They will be dealt with together as the point
raised in them is common. The brief facts necessary for the
purpose are these: There is a Government Printing Press at
Rashtrapati Bhavan known as Rashtrapati Bhavan Printing
Press which is located in the President’s estate in New
Delhi. Jacobs was the General Foreman of this Press. Every
year the budget proposals are printed at this Press under
the supervision of Jacobs. As usual, Jacobs supervised the
printing of budget proposals in his official capacity in
February 1955 also. It appears that Jacobs entered
into a conspiracy to divulge the budget proposals on
receiving valuable consideration for the same. Consequently
the proposals were divulged to D. P. Chadda and were passed
on to certain businessmen of Bombay, including Nandlal More
and Hiralal G. Kothari through one A. L. Mehra. All this
was done against the provisions of the Official Secrets Act,
No. XIX of 1923. Further an offence was committed under the
Prevention of Corruption Act, No. 11 of 1947, also inasmuch
as money was paid to Jacobs for divulging the budget
proposals. The same thing happened in February
1956, with ‘respect to the
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budget proposals for 1956-57. This was discovered on March
9, 1956, and a case was registered under s. 165-A of the
Indian Penal Code, s. 5(2) of the Prevention of Corruption
Act,’ s. 5 of the Official Secrets Act and s. 120-B of the
Indian Penal Code and investigation started on March 10,
1956. Thereafter, pardon was tendered to A.L. Mehra by the
Additional District Magistrate on March 23, 1956, under s.
337 of the Code of Criminal Procedure. The four offences
mentioned above were specified in the order of the
Additional District Magistrate tendering pardon to Mehra.
Thereafter owing to technical legal difficulties a complaint
under s. 5 of the Official Secrets Act read with s. 120-B of
the Indian Penal Code was filed against the persons involved
and it was, stated in that complaint that proceedings with
the respect to the charge under s. 5(2) of the Prevention of
Corruption Act would be taken separately. Proceedings then
began before a magistrate on this complaint. It may be
mentioned that no proceedings have yet started insofar as
the offences under s. 5(2) of the Prevention of Corruption
Act and s. 165-A of the Indian Penal Code are concerned.
In the course of these proceedings before the magistrate,
the prosecution wanted to examine Mehra as an approver.
Thereupon the accused persons objected that as the
proceedings before the magistrate were only under s. 5 of
the Official Secrets Act and s. 120-B of the Indian Penal
Code, Mehra could not be examined as an approver and in
consequence the case could not be committed to the Court of
Session but should be disposed of by the magistrate himself.
The magistrate held that Mehra could be treated as an
approver and proceedings before him were therefore in the
nature of commitment proceedings. Thereupon there was a
revision to the Sessions Judge who took the view that as the
proceedings before the magistrate were under s. 5 of the
Official Secrets Act read with s. 120-B of the Indian Penal
Code and as no pardon could be tendered under s. 337 of the
Code of Criminal Procedure for these offences, Mehra could
not be treated as an approver and had to be examined as an
46
358
ordinary witness and the proceedings must be held to be
trial proceedings before the magistrate and not commitment
proceedings. He therefore recommended to the High Court
that the order of the magistrate be set aside.
The High court upheld the view of the Sessions
Judge and ordered accordingly. It granted certificates
under Art. 134(1)(c) of the Constitution; and that is how
these three appeals have been filed by the State before us.
The only question that has been urged before us is that the
view of the magistrate is correct and Mehra could be treated
as an approver and examined as such for the purposes of the
proceedings before him. The question whether the case
should be committed to the Court of Session does not survive
now as we are told that one of the accused has asked for
trial by the Court of Session as provided under s. 13(2) of
the Official Secrets Act. The High Court examined s. 337 of
the Code of Criminal Procedure and came to the conclusion
that a pardon under that section could only be tendered with
respect to certain offences mentioned therein. It was
further of the view that as s. 5 of the Official Secrets Act
read with s. 120-B of the Indian Penal Code was not covered
by the words of s. 337(1) and as the proceedings before the
magistrate were only with respect to these offences, Mehra
could not be treated as an approver, to whom pardon had been
tendered, for the purpose of these proceedings.
A mere perusal of s. 337 of the Code of Criminal Procedure
shows that the view of the High Court is correct. Section
337(1) provides for tender of a pardon in respect of the
following offences, namely-
(i) Any offence triable exclusively by the High Court or
Court of Session ;
(ii) Any offence punishable with imprisonment which may
extend to seven years;
(iii) Any offence under any of the following sections of
the Indian Penal Code: 161, 165, 165-A, 216-A, 369, 401, 435
and 477-A.
359
Thus pardon can only be tendered with respect to an offence
which falls in one of these categories. It is not disputed
that an offence under s. 5 of the Official Secrets Act read
with s. 120- B of the Indian Penal Code does not fall
within any of these categories. So if the proceedings were
with respect only to an offence under s. 5 of the Official
Secrets Act read with s. 120-B of the Indian Penal Code, s.
337 of the Code of Criminal Procedure would not apply and no
pardon could be tendered to any person. It is urged,
however, that s. 337(1) contemplates tender of a pardon on
condition of the person pardoned 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; and this means that the person to whom pardon is
tendered is expected to tell the whole truth including
details of any other subsidiary offence which might have
been committed in the course of the commission of the
offence for which pardon is tendered and therefore the
pardon so tendered must be held to include the subsidiary
offence, even though, if the subsidiary offence alone were
committed and were not of the nature mentioned in s. 337(i),
no pardon could have been tendered for the same. Reliance
in this connection is placed also on s. 339 of the Code of
Criminal Procedure, which provides that where any person who
has accepted pardon either by wilfully concealing anything
essential or by giving false evidence, does not comply with
the Condition on which the tender was made, he may be tried
for the offence in respect of which the pardon was tendered
or for any other offence of which he appears to have been
guilty in connection with the same matter. It is said that
the specific provision for trial for any other offence which
might have been committed in connection with the same matter
in s. 339 shows that the pardon would cover the other
offence also even though it may not be an offence for which
the pardon was and could be tendered.
We are of opinion that no such inference could be drawn from
the use of these words in s. 339, for that
360
section deals with a different contingency altogether,
namely, whether the conditions of the pardon had been
complied with. It is to be remembered that a
pardon- -tendered under s. 337 is a protection from
prosecution. Failure to comply with the conditions on
which the pardon is tendered removes that protection.
All that s. 339 says, provided the requisite certificate
under that section is given by the Public Prosecutor, is
that the person to whom the pardon is tendered can be
prosecuted for the offence for which the pardon was tendered
as also any other offence of which he appears to be guilty
in connection with the same matter. This would be just the
same as if s. 339 merely stated that on failure to comply
with the conditions of the pardon such pardon would be for-
feited. , The words of s. 339 therefore are of no help in
construing s. 337 and we must look to the words of 337 in
deciding whether a pardon could be tendered for an offence
under s. 5 of the Official Secrets Act read with s. 120-B of
the Indian Penal Code. The fact that in the application in
which the police requested the Additional District
Magistrate for tender of pardon or in the order of the
Additional District Magistrate tendering pardon, s. 5 of the
Official Secrets Act was mentioned along with other offences
for which pardon could be tendered would not mean that a
pardon could be tendered for an offence under that Act if
under the law as provided in s. 337(1) no pardon could be
tendered for an offence under s. 5 of the Official Secrets
Act. As we read s. 337(1), it is to our mind perfectly
clear that pardon can only be tendered under that provision
with respect to the three categories of offences mentioned
therein and already indicated above and none other. As s. 5
of the Official Secrets Act read with s. 120-B of the Indian
Penal Code does not fall within any of these categories no
pardon can be tendered with respect to that offence.
Therefore, Mehra to whom pardon has been tendered, could not
be examined as an approver in the proceedings which are
concerned ,only with an offence under s. 5 of the Official
Secrets Act read with s. 120-B of the Indian Penal Code.
361
Learned counsel for the appellant drew our attention to
three cases in support of the view that a pardon under s.
337(1) could be tendered not only for the offences of the
kind enumerated therein but also other offences which might
be committed in the course of the commission of the offences
enumerated therein but which might not be within the terms
of s. 337(1). These cases are: Queen-Empress v. Ganga
Charan (1) ; Harumal Parmanand v. Emperor (2); and Shiam
Sunder v. Emperor (3). These cases however refer to
different circumstances altogether and were not concerned
with ‘the interpretation of s. 337(1) of the Code of
Criminal Procedure. In all these cases the question that
arose before the courts was whether an approver who was
prosecuted under s. 339 for certain offences could be or
should be so prosecuted. They also turned on the terms of
the pardon granted in those particular cases. It was there
held that where a question arose how far a pardon would
protect an approver, it. should not be treated in a narrow
spirit, bearinG in mind that in countenaiicing tender of
pardons to accomplices the law does not invite a cramped and
constrained statement by’ the approver but requires a
thorough and complete disclosure of all the facts within his
knowledge bearing upon the offence or offences as to which
he gave evidence. The considerations which apply when a
trial is taking place tinder s. 339 of the Code of Criminal
Procedure are entirely different. The proviso to s. 339
shows that at his trial, an approver is entitled to plead
that he has complied with the condition upon which tender of
pardon was made and if he succeeds in proving that he has
complied with the conditions upon which the tender was made
he is protected from prosecution with respect to all
offences which appear to have been committed in connection
with the matter giving rise to the offence for which pardon
was tendered. These three cases really turn on the question
whether the accused had complied with the conditions upon
which the pardon was tendered to him and it was held that be
had so complied.
(1) I.L.R. 11 All. 79. (2) A.I.R. 1915 Sind 43,
(3) A.I.R. 1921 All. 234,
362
In those circumstances, the trial under s. 339 was held to
be bad. We are not concerned in the present case with s.
339. What we have to decide is whether a
pardon under S. 337(1) of the Code of Criminal Procedure can
be granted in the case of an offence under s. 5 of the
Official Secrets Act read with s. 120-B of the Indian
Penal Code. To that there can be only one answer on the
terms of s. 337(1), namely, that no pardon can be granted
for an offence of this nature. Therefore, as the present
proceedings before the magistrate are only for an offence
under s. 5 of the Official Secrets Act read with s. 120-B of
the Indian Penal Code, Mehra cannot be examined as an
approver in that court. There is no force in these appeals
and they are hereby dismissed.
Appeals dismissed.