{"id":189623,"date":"1973-03-16T00:00:00","date_gmt":"1973-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-kailash-nath-agarwal-ors-on-16-march-1973"},"modified":"2018-10-06T13:08:52","modified_gmt":"2018-10-06T07:38:52","slug":"state-of-u-p-vs-kailash-nath-agarwal-ors-on-16-march-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-kailash-nath-agarwal-ors-on-16-march-1973","title":{"rendered":"State Of U. P vs Kailash Nath Agarwal & Ors on 16 March, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U. P vs Kailash Nath Agarwal & Ors on 16 March, 1973<\/div>\n
Equivalent citations: 1973 AIR 2210, \t\t 1973 SCR (3) 728<\/div>\n
Author: C Vaidyialingam<\/div>\n
Bench: Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nSTATE OF U. P.\n\n\tVs.\n\nRESPONDENT:\nKAILASH NATH AGARWAL & ORS.\n\nDATE OF JUDGMENT16\/03\/1973\n\nBENCH:\nVAIDYIALINGAM, C.A.\nBENCH:\nVAIDYIALINGAM, C.A.\nALAGIRISWAMI, A.\nDUA, I.D.\n\nCITATION:\n 1973 AIR 2210\t\t  1973 SCR  (3) 728\n 1973 SCC  (1) 751\n\n\nACT:\nCr.P.C.--S.   337(1)-Whether   a  District   Magistrate\t  is\ncompetent  to grant pardon under the section when  a  First,\nClass  Magistrate, before whom the enquiry proceedings\twere\npending, had rejected such a request.\n\n\n\nHEADNOTE:\nRespondent  entered into a conspiracy as a result  of  which\nthey  defrauded the railway administration during  the\tyear\n1958-59,  very\tlarge  amounts.\t A  charge-sheet  was  filed\nagainst them under s. 120(B), 420,467, 468 and 471 I.P.C.\nThe enquiry proceedings were started in the court of the 1st\nClass Magistrate, Kanpur.  The 2nd and 3rd respondents\tgave\nconfessional  statements and both of them made\tapplications\nunder  s. 337 of Cr.P.C. praying for grant of  pardon.\t The\nMagistrate  passed  an order declining to grant\t pardon\t and\nrejected the applications.  However, on behalf of the State,\nan  application\t was filed before the  District\t Magistrate,\nKanpur,\t to grant pardon to respondent 2 and 3 on  condition\nof their making a full disclosure of the whole case.  In the\napplication, reference was made to the 'fact that a  request\nmade  by these two accused for grant of pardon was  rejected\nby the Magistrate enquiring into the offence., The applica-\ntion  was  opposed by respondents No. 1 and 4 to  6  on\t the\nground\tthat the District Magistrate had no power  to  grant\npardon when the enquiring Magistrate had declined a  similar\nrequest.   The District Magistrate rejected this  contention\nand granted pardon to the 2nd respondent on condition of his\nmaking a full disclosure of the whole case.\nThe  first respondent filed a criminal revision\t before\t the\nDistrict  Judge Kanpur, challenging this order.\t  Ultimately\nit was heard by a Civil and Sessions Judge, Kanpur.  It\t was\nheld that the District Magistrate was not competent to grant\npardon\tto  respondent No. 2. The Civil and  Sessions  Judge\nfurther\t held that the order of the District Magistrate\t was\nwholly\twithout\t jurisdiction and  therefore,  referred\t the\nmatter\tto  the High Court with a  recommendation  that\t the\norder  of  the District Magistrate granting  pardon  to\t the\nsecond\trespondent should be quashed.  The High\t Court\theld\nthat  the District Magistrate had no power to  grant  pardon\nafter  it had been once refused by the 1st Class  Magistrate\nenquiring into the matter and that the order of the District\nMagistrate was revisable by the Civil and Sessions Judge and\nquashed\t the order of the District Magistrate, Kanpur.\t The\nquestion  was whether the District Magistrate  is  competent\nunder s. 337(1) of the Cr.P.C. to grant pardon to an accused\nwhen  a\t 1st  Class  Magistrate\t before\t whom  the   enquiry\nproceedings had ;been pending had rejected such a request.\nParty allowing the appeal,\nHELD  : (i) A perusal of s. 337(1) shows that  the  District\nMagistrate,   a\t Presidency  Magistrate,  a   Sub-Divisional\nMagistrate  or any Magistrate of the First Class may  tender\npardon\tin the circumstances mentioned therein at any  stage\nof  the\t investigation\tor  enquiry into  or  trial  of\t the\noffence.   But\tunder the proviso if the  offence  is  under\nenquiry or trial, only the District Magistrate and only\t the\nMagistrate  making  the enquiry or holding  the\t trial,\t can\nexercise the power.  Similarly where the offence\n729\nis  under  investigation,  it is only  a  Magistrate  having\njurisdiction  in  the  place  where-the\t offence  might\t  be\nenquired  into or tried that can exercise the  power.\tEven\nsuch  a\t Magistrate  can exercise that\tpower  only  if\t the\nsanction  of  the  District Magistrate\thas  been  obtained.\nWhile there is a restriction on the powers of the Magistrate\nof  the First Class, no such restriction is to be  found  in\nthe proviso on the powers of the District Magistrate  either\nat  the stage of investigation or enquiry into or  trial  of\nthe  offence.  Emphasis is to be laid on the fact that\tthe\nproviso to s. 337 which contemplates concurrent jurisdiction\nin  the District Magistrate and in the Magistrate making  an\nenquiry\t or holding the trial to tender pardons.,  The\tmere\nfact that a Magistrate of the first class enquiring into  an\noffence\t has  declined to grant pardon, as  in\tthe  present\ncase,  does not take away the power or jurisdiction  of\t the\nDistrict  Magistrate to entertain a further application\t for\ngrant of pardon.  However, judicial propriety requires\tthat\nif a higher authority had declined to tender pardon, a lower\nauthority  should  not grant pardon except on  fresh  facts.\nThe above principle will apply even to proceedings under  s.\n338. [735B]\n(ii)  The  question whether the State should  have  filed  a\nrevision  against  the order of refusal of  the\t Magistrate,\ndoes  not  require an answer, because of the fact  that\t the\nDistrict  Magistrate has got concurrent powers and  that  he\ncan  be\t approached under s. 337 even after  the  Magistrate\nenquiring  into\t the offence had declined to  grant  pardon.\n[739D]\n(iii)  An  order  granting pardon is open  to  revision\t but\nwhether the court whose powers are invoked for that  purpose\nwill  interfere\t or  not  is a\tmatter\tdepending  upon\t the\ncircumstances\tin   each  case.   Therefore,\tthe   :first\nrespondent's   revision\t before\t the  Sessions\tCourt,\t was\ncompetent  and a revision petition lies before\tthis  Court.\n[740A]\n(iv)  A pardon granted bona fide is fully protected  by\t the\nprovisions  of\tS. 529 of the Cr.P.C., but in  view  of\t the\nDistrict  Magistrate's\tpower  to grant pardon,\t it  is\t not\nnecessary that the State should rely on s. 529 Clause (g) of\nthe Cr.\t P. C. [741A]\nKanta  Prasad  v. Delhi Administration [1958]  S.C.R.  1218,\nA.J.,  Peiris v. State of Madras<\/a> [1954] Cr.L.J. 1638,  State\nof Andhra Pradesh v. Cheemalapati Ganeswara & Anr.<\/a> [1964]  3\nS.C.R. 297 and M. M. Kochar v. The State A.I.R. 1969,  Delhi\n21, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 193 of
\n1969.\n<\/p>\n
Appeal by certificate from the judgment and order dated Sep-
\ntember\t11,  1968 of the Allahabad High\t Court\tin  Criminal
\nReference No. 284 of 1967.\n<\/p>\n
O. P. Rana, for the appellant.\n<\/p>\n
B. P. Maheshwari ‘and Saresh Sethi, for respondents Nos. 5
\nand 6.\n<\/p>\n
The Judgment of the Court was delivered by
\nVAIDIALINGAM, J. The question that arises for  consideration
\nin this appeal by the State of U.P. on certificate is-\n<\/p>\n
\t      ”\t whether a District Magistrate is  competent
\n\t      under  section 337(1) of the Code of  Criminal
\n\t      Procedure to
\n730<\/span>
\n\t      grant pardon to an accused person when a First
\n\t      Class  Magistrate,  before  whom\tthe  inquiry
\n\t      proceedings  had\tbeen pending,  had  rejected
\n\t      such a request”\n<\/p><\/blockquote>\n
Before we proceed to state the facts, it has to be mentioned
\nthat it has been brought to our notice that Sarwan Lal,\t the
\n4th  respondent,  died after the appeal was  filed  in\tthis
\nCourt  by the State.  In consequence the appeal\t has  abated
\nagainst\t him.\tHowever, in the course of the  judgment,  we
\nWill have to refer to him also when we state the case of the
\nprosecution.\n<\/p>\n
The prosecution case against the accused was as follows
\nThe  first respondent, Kailash Nath, along with Sarwan\tLal,
\nMoti  Chandra  and  Smt.  Shanti Devi, respondents  4  to  6
\nrespectively,  were the Directors of M\/s M. K. Brothers\t (P)
\nLtd.,  Kanpur and were doing business in cotton\t in  Kanpur.
\nIn  the\t course\t of their business, they  used\tto  purchase
\ncotton from out stations and sell them to the textile  mills
\nat  Kanpur.  The second respondent, Kesardeo Budhia, was  an
\nemployee  of  M\/s M. K. Brothers (P) Ltd. and used  to\tlook
\nafter  the work of taking delivery of cotton bales from\t the
\nKanpur\trailway station.  The third respondent, Devi  Prasad
\nAgarwal, was a representative of J. K. Cotton Mills  Kanpur.
\nIn  1958  the financial position of M\/s M. K.  Brothers\t (P)
\nLtd.  became  very precarious and in consequence  they\tcom-
\nmitted\tconsiderable delay in clearing the  consignments  of
\ncotton from the station premises and this resulted in  their
\nbeing liable for heavy arrears of demurrage and wharfage.
\nAs the textile industry itself was facing a crisis in  1958,
\nthe Government, with a view to give some assistance, granted
\nseveral concessions.  One such was that the consignees, who,
\nhad  their  own railway sidings, were granted  remission  in
\nrespect\t of  demurrage and wharfage payable to\tthe  railway
\nauthorities.   This enabled the consignees to take  delivery
\nof goods according to their convenience.  In the said  year,
\nas  M\/s M. K. Brothers (P) Ltd. had received a large  number
\nof  consignments of cotton bales, they evolved a  scheme  to
\navail  themselves  of  the benefit granted  to\tthe  textile
\nindustry by the Government.  For this purpose, they  hatched
\na plan by which they misrepresented that the consignments of
\ncotton\tbales received at Kanpur railway station, though  in
\ntheir  name,  actually belonged to, M\/s J. K.  Cotton  Mills
\nKanpur.\t  The  second respondent, an employee of M\/s  M.  K.
\nBrothers, the third respondent, an employee of J. K. Cotton
\nMills and respondents 1 and 4 to 6, the Directors of M\/s  M.
\nK.  Brothers,  entered into a conspiracy in  furtherance  of
\ntheir  object and as a result thereof they  submitted  false
\napplications  to the railway authorities on behalf of J.  K.
\nCotton\tMills for remission on the representation  that\t the
\ngoods had been consigned to J. K. Cotton Mills.\t In
\n731<\/span>
\nfurtherance of the object of this conspiracy, they also made
\nfalse  endorsements on the railway receipts for transfer  of
\nthe  bales.  As a result of the conspiracy,  they  defrauded
\nthe  railway administration during the year 1958-59 of\tvery
\nlarge  amounts Accordingly a charge-sheet was filed  against
\nrespondents 1 to 6, under sections 120(B), 420, 467, 468 and
\n471 of the Indian Penal Code.\n<\/p>\n
The  ‘inquiry proceedings were started in the Court  of\t the
\nFirst Class Magistrate, Kanpur, as the case was triable as a
\nSessions  case.\t  On June 30, 1962, the\t second\t respondent,
\nKesardeo Budhia, made a confessional statement.\t  Similarly,
\nDevi   Prasad\tAgarwal,  the  third  respondent,   gave   a
\nconfessional statement on July 12, 1963.  Both respondents 2
\nand 3 made applications on December 17, 1964, under  section
\n337  of the Criminal Procedure Court before the First  Class
\nMagistrate   praying   for  grant  of  pardon.\t  The\tsaid
\napplications  were  supported by the  prosecution,  but\t the
\nother  accused opposed the grant of pardon.  The  Magistrate
\nby  his\t order dated September 27, 1965, declined  to  grant
\npardon\tand rejected the applications of both  the  accused.
\nHowever, on behalf of the State its Special counsel filed an
\napplication   on  April\t 15,  1966,  before   the   District
\nMagistrate,  Kanpur, to grant pardon to respondents 2 and  3
\non  condition of their making a full and true disclosure  of
\nthe whole of the circumstances.\t In this application, it was
\nstated\t that  the  First  Class  Magistrate,  Kanpur,\t was
\ninquiring  into\t the matter and was  recording\tevidence  of
\nwitnesses  for the purpose of being satisfied that  a  prima
\nfacie  case had been established.  It was stressed that\t the
\ndirect\t evidence  of  conspiracy  would  be  furnished\t  by
\nrespondents 2 and 3 if they are granted pardon: and examined
\nas witnesses.  Reference was also made to the effect that  a
\nrequest\t made  by  those accused for  grant  of\t pardon\t was
\nrejected  by  the Magistrate enquiring\tinto  the  offences.
\nThis application was opposed by respondents 1 and 4 to 6  on
\nthe  ground  that the District Magistrate has  no  power  to
\ngrant.\tpardon\twhen  once  the\t enquiring  Magistrate\t has
\ndeclined   a  similar  request.\t  The  District\t  Magistrate
\nrejected this contention and held that he had  jurisdiction,
\nto  consider the application on merits, notwithstanding\t the
\nfact  that  the enquiring Magistrate had declined  to  grant
\npardon.\t  On  merits,  the  Magistrate\theld  that  in\t the
\ncircumstances  it  is  enough  if  the\tsecond\t respondent,
\nKesardeo  Budhia alone is tendered pardon.  Accordingly,  by
\nhis  order  dated  June 1, 1966,  he  granted  pardon  under
\nsection 337 to this accused alone on condition of his making
\na   full  and  proper  disclosure  of  the  whole   of\t the
\ncircumstances within his knowledge relating to the offences.
\nThe first respondent filed Criminal Revision No. 85 of\t1966
\nbefore the District Judge, Kanpur, challenging the order  of
\nthe District Magistrate which. was ultimately dealt with  by
\nthe Civil
\n732<\/span>
\nand  Sessions  Judge,  Kanpur.\t The  jurisdiction  of\t the
\nDistrict  Magistrate to grant pardon, after the First  Class
\nMagistrate  having refused, was again the subject of  debate
\nbefore\tthe  Sessions  court.\tThe  State  and\t the  second
\nrespondent contended before the Civil & Sessions Judge\tthat
\nthe  Revision  was not competent.  The\tCivil  and  Sessions
\nJudge rejected the contention of the State that no  revision
\nlies.\tIt upheld the plea of the first respondent that\t the
\nDistrict  Magistrate was not competent to, grant pardon\t to,
\nKesardeo  Budhia.  The view of the Civil and Sessions  Judge
\nis  that if the State was dissatisfied with the order  dated
\nSeptember  27, 1965, passed by the First  Class\t Magistrate,
\nthat  order should have been challenged in  revision  before
\nthe  District Judge or the District Magistrate.\t Not  having
\ndone so, it cannot invoke the jurisdiction of the  District
\nMagistrate under section. 337.\tThe Civil and Sessions Judge
\nhas  further held that the order of the District  Magistrate
\nwas  wholly without jurisdiction and in consequence  by\t his
\norder  dated June 16, 1967, referred the matter to the\tHigh
\nCourt  with  a recommendation that the order dated  June  1.
\n1966,  of  the District Magistrate granting  pardon  to\t the
\nsecond respondent should be quashed.\n<\/p>\n
This  reference of the Civil and Sessions Judge\t before\t the
\nHigh Court was Criminal Reference No. 284 of 1967.  The High
\nCourt  by its judgment and order dated September  11,  1968,
\nhas held that the District Magistrate has no power to  grant
\npardon\tafter  it has been once refused by the\tFirst  Class
\nMagistrate  enquiring into the matter and that the order  of
\nthe  District  Magistrate  was revisable by  the  Civil\t and
\nSessions  Judge.  In this view, the High Court accepted\t the
\nReference  and quashed the order dated June 1, 1966, of\t the
\nDistrict Magistrate, Kanpur.\n<\/p>\n
Mr.  Rana, learned counsel for the State, has  raised  three
\ncontentions :\n<\/p>\n
\t      (1)  The\tpower  under  section  337  of\t the
\n\t      Criminal\tProcedure  Code exercisable  by\t the
\n\t      various\tMagistrates  mentioned\ttherein\t  is
\n\t      concurrent and the District Magistrate in\t the
\n\t      circumstances  of this case was  competent  to
\n\t      grant pardon to respondent No. 2.
\n\t      (2) The Revision filed by the first respondent
\n\t      before  the Civil and Sessions  Judge  against
\n\t      the  order  of  the  District  Magistrate\t was
\n\t      incompetent.\n<\/p><\/blockquote>\n
\t      (3)  In any event, the grant of pardon by\t the
\n\t      District\tMagistrate is only an  irregularity,
\n\t      which is cured by clause (g) of section 529 of
\n\t      the  Criminal Procedure Code; and as such\t the
\n\t      High  Court was in error in  interfering\twith
\n\t      the said order.\n<\/p><\/blockquote>\n
733<\/span><\/p>\n
Mr. B. P. Maheshwari, learned counsel appearing for  respon-
\ndents  5 and 6, has supported the order of the\tHigh  Court.
\n‘According  to him, the scheme of section 337 clearly  shows
\nthat  the question of granting or refusing pardon has to  be
\ndealt with in the circumstance and by the officers  referred
\nto  therein.  When once that jurisdiction has  been  invoked
\nbefore\tone  officer, it cannot be reopened  before  another
\nofficer.  The counsel contended that it may be that if fresh
\nfacts  have  come to light later and are placed\t before\t the
\ncourt,\tit  may\t have jurisdiction to  reconsider  an  order
\npassed at the early stage of proceedings.  In this case, the
\nState  had  not\t placed any  material  before  the  District
\nMagistrate  that  was  not already before  the\tFirst  Class
\nMagistrate.   That being so, the District Magistrate had  no
\njurisdiction to consider on the same facts a second  request
\nmade  for the same purpose.  Mr. Maheshwari further  pointed
\nout  that  if the State was aggrieved by the  order  of\t the
\nMagistrate   dated  September  27,  1965,  it  should\thave
\nchallenged  the same in revision before the Sessions  Judge.
\nIn view of these circumstances, he pointed out that the High
\nCourt  had  rightly  held that the  order  of  the  District
\nMagistrate was without jurisdiction.\n<\/p>\n
It  is now necessary to refer to the material provisions  of
\ntile  Criminal\tProcedure Code.\t Though section 337  is\t the
\nrelevant section, nevertheless, it is necessary to refer  to
\nsection\t 338 also.  These two sections occurring in  chapter
\nXXIV  dealing with “general provisions as to  inquiries\t and
\ntrials” are as follows:\n<\/p>\n
Tender of pardon to accomplice.\n<\/p>\n
\t      ” 337(1).\t In the case of any offence  triable
\n\t      exclusively  by  the High Court  or  Court  of
\n\t      Session,\t or  any  offence  punishable\twith
\n\t      imprisonment which may extend to seven  years,
\n\t      or  any  offence under any  of  the  following
\n\t      sections\tof  the Indian Penal  Code,  namely,
\n\t      sections\t161, 165, 165A, 216A, 369, 401,\t 435
\n\t      and   477A,   the\t  District   Magistrate,   a
\n\t      Presidency    Magistrate,\t  a    Subdivisional
\n\t      Magistrate  or  any Magistrate  of  the  first
\n\t      class  may, at any stage of the  investigation
\n\t      or enquiry into, or the trial of the  offence,
\n\t      with  a view to obtaining the evidence of\t any
\n\t      person  supposed\tto  have  been\tdirectly  or
\n\t      indirectly  concerned  in\t or  privy  to\t the
\n\t      offence,\ttender\ta pardon to such  person  on
\n\t      condition\t of  his  making  a  full  and\ttrue
\n\t      disclosure  of the whole of the  circumstances
\n\t      within  his knowledge relative to the  offence
\n\t      and  to every other person concerned,  whether
\n\t      as  principal  or abettor, in  the  commission
\n\t      thereof;\n<\/p><\/blockquote>\n
\t      Provided\tthat,  where the  offence  is  under
\n\t      inquiry  or trial, no Magistrate of the  first
\n\t      class other than the District Magistrate shall
\n\t      exercise the power hereby conferred
\n734<\/span>
\n\t      unless he is the Magistrate making the inquiry
\n\t      or  holding the trial, and, where the  offence
\n\t      is  under\t investigation, no  such  Magistrate
\n\t      shall exercise the  said power unless he is  a
\n\t      Magistrate  having  jurisdiction\tin  a  place
\n\t      where  the offence might be inquired  into  or
\n\t      tried  and   the\tsanction  of  the   District
\n\t      Magistrate  has been obtained to the  exercise
\n\t      thereof.”\n<\/p><\/blockquote>\n
\t      (1A)  “Every Magistrate who tenders  a  pardon
\n\t      under sub-section (1) shall record Ms  reasons
\n\t      for  so doing, and shall, on application\tmade
\n\t      by  the  accused, furnish him with a  copy  of
\n\t      such record :\n<\/p><\/blockquote>\n
\t      Provided\tthat the accused shall pay  for\t the
\n\t      same  unless the Magistrate for  some  special
\n\t      reason thinks fit to furnish it free of cost.”
\n\t      Power to direct tender of pardon.
\n\t      “338.   At  any  time  after  commitment,\t but
\n\t      before judgment is passed, the Court to  which
\n\t      the  commitment is made may, with the view  of
\n\t      obtaining\t on  the trial the evidence  of\t any
\n\t      person  supposed\tto  have  been\tdirectly  or
\n\t      indirectly concerned in, or privy to, any such
\n\t      offence,\ttender,\t or  order  the\t  committing
\n\t      Magistrate  or  the  District  Magistrate\t  to
\n\t      tender, a pardon on the same condition to such
\n\t      person.”\n<\/p><\/blockquote>\n
Section 435 (1) gives power to the High Court, the  Sessions
\nJudge and to the other authorities mentioned therein to call
\nfor  records of inferior courts for the\t purposes  mentioned
\ntherein.   Sub-section\t4 provides that\t if  an\t application
\nunder section 435 has been made either to the Sessions Judge
\nor the District Magistrate, no further application shall  be
\nentertained by the other of them.  Section 529 occurring  in
\nChapter\t XLV under the, heading “of  irregular\tproceedings”
\ndeals with irregularities which do not vitiate\tproceedings.
\nThe  material part of this section relevant for the  present
\npurpose is as follows :-\n<\/p>\n
\t      Irregularities\twhich\tdo    not    vitiate\n\t      proceedings.\n<\/pre>\n
\t      “529.  If any Magistrate not empowered by\t law
\n\t      to do any of the following things, namely
\n\t      *\t  *    *   *   *   *\t*    *\n<\/p>\n
\t      (g)  to tender a pardon under section  337  or
\n\t      section 338
\n\t      *\t   *\t *    *\t   *\t *    *
\n735<\/span>
\n.lm15
\nerroneously  in good faith does that thing, his\t proceedings
\nshall  not  be set aside merely on the ground  of  his-\t not
\nbeing so empowered.”\n<\/p>\n
A  perusal  of\tsection 3 37 (1)  shows\t that  the  District
\nMagistrate,.  a\t Presidency  Magistrate,  a   Sub-divisional
\nMagistrate  or any Magistrate of the First Class may  tender
\npardon\tin the circumstances mentioned therein at any  stage
\nof  the\t investigation\tor  inquiry into  or  trial  of\t the
\noffence.   But under the provision, if the offence is  under
\ninquiry\t or  trial,  the District Magistrate  and  only\t the
\nMagistrate  making  the inquiry or holding  the\t trial,\t can
\nexercise  the power.  Similarly, where the offence is  under
\ninvestigation,\tit is only a Magistrate having\tjurisdiction
\nin  a  place  where the offence might be  enquired  into  or
\ntried,\tcan exercise the power.\t Even such a Magistrate\t can
\nexercise  that\tpower only if the sanction of  the  District
\nMagistrate has been obtained.  While there is a\t restriction
\non the powers of the Magistrate of the First Class, no such.
\nrestriction  is to be found in the proviso on the powers  of
\nthe District Magistrate either at the stage of investigation
\nor inquiry into, or trial of the offence.  Sub-section 1 (A)
\nmakes  it obligatory on the Magistrate tendering  pardon  to
\nrecord\this reasons for so doing and also of furnishing\t the
\naccused\t with  a  copy of his order.  No  doubt,  under\t the
\nproviso,  the  accused has to pay for the  same\t unless\t the
\nMagistrate thinks fit, for some special reasons, to  furnish
\nthe order free of cost.\n<\/p>\n
Section 338 deals: with the grant of pardon after the  stage
\nof  commitment\thas  been reached  but\tbefore\tjudgment  is
\npassed.\t  It  gives  full  power  to  the  court,  to  which
\ncommitment is made, to tender pardon or order the Committing
\nMagistrate  or the District Magistrate to tender  pardon  on
\nthe same conditions.  The question arose in Kanta Prashad v.
\nDelhi Administration<\/a>(1), whether the District Magistrate had
\npower  to tender a pardon under section 337 in\teases  where
\nthe  offence  was triable exclusively by the  court  of\t the
\nSpecial\t Judge.\t  Having  regard to the\t provisions  of\t the
\nCriminal  Law  (Amendment)  Act, 1952  and  the\t scheme\t of’
\nsection 337 of the Criminal Procedure Code, this, Court held
\nthat as the court of the Special Judge was in law a court of
\nSession, the District Magistrate had power to grant  pardon.
\nThe  contention\t that under such  circumstances\t the  proper
\nauthority  to  grant  pardon  was  the\tSpecial\t Judge\t was
\nrejected,  as the position of the Special Judge was  similar
\nto, that of a Judge of a court of Session.,It was observed :\n<\/p>\n
\t      “The  proviso  to section 337 of the  Code  of
\n\t      Criminal\tProcedure contemplates\tconcurrent
\n\t      jurisdiction  in the District  Magistrate\t and
\n\t      the Magistrate making an
\n(1) [1958] S.C.R. 1218.\n<\/p><\/blockquote>\n
736<\/span><\/p>\n
\t      inquiry  or  holding  the trail  to  tender  a
\n\t      pardon.  According to the provisions of S. 338
\n\t      of  the Code even after commitment but  before
\n\t      judgment\tis  passed, the Court to  which\t the
\n\t      commitment  is  made may tender  a  pardon  or
\n\t      order   the  committing  Magistrate   or\t the
\n\t      District\tMagistrate to tender a\tpardon.\t  It
\n\t      would  seem,  therefore,\tthat  the   District
\n\t      Magistrate  is  empowered to tender  a  pardon
\n\t      even  after  a  commitment  if  the  Court  so
\n\t      directs.\t Under s. 8(2) of the  Criminal\t Law
\n\t      (Amendment)  Act, 1952, the Special Judge\t has
\n\t      also been granted power to tender pardon.\t The
\n\t      conferment of this power on the Special  Judge
\n\t      in no way deprives the District Magistrate  of
\n\t      his  power to grant a pardon under S.  337  of
\n\t      the Code”.\n<\/p><\/blockquote>\n
It will be noted from this decision that emphasis is laid on
\nthe  fact  that\t the proviso  to  section  337\tcontemplates
\nconcurrent  jurisdiction in the District Magistrate  and  in
\nthe  Magistrate\t making an inquiry or holding the  trial  to
\ntender pardon.\tIt is also emphasised that the conferment of
\nthe  power  to grant pardon on the Special  Judge  does\t not
\ndeprive the District Magistrate of his power to grant pardon
\nunder  section 337.  In A. J. Peiris v. State of  Madras<\/a>(1),
\nthe   question\tarose  before  this  Court   whether   after
\ncommitment  had already been made, the\tDistrict  Magistrate
\n‘has power to grant pardon.  From the facts mentioned in the
\njudgment  it  is  seen that on July  24,  1951,\t the  police
\nsubmitted  the\tcharge-sheet against the accused  and  one
\nAlbert.\t Albert, however, could not be traced and the  other
\naccused\t were committed to the Sessions on August  4,  1952.
\nAlbert was arrested on July 28, 1952, and his confession was
\nrecorded  by  the Magistrate after complying  with  all\t the
\nnecessary formalities required by law.\tOn August 28,  1952,
\nhe  was\t granted pardon by the\tDistrict  Magistrate,  South
\nKanara.\t The evidence of Albert was relied on for convicting
\nthe other accused.  This Court rejected the contention\tthat
\nafter  commitment  the\tonly court having  power  to  tender
\npardon was the court of Sessions Judge and not the  District
\nMagistrate.  It was observed
\n\t      “By  section  338,  Criminal  Procedure  Code,
\n\t      power  is no doubt given after  commitment  is
\n\t      made  to\ttender pardon,\tbefore\tjudgment  is
\n\t      passed,  to any person supposed to  have\tbeen
\n\t      directly\tor  indirectly\tconcerned  with\t any
\n\t      offence or order the Committing Magistrate  or
\n\t      the District Magistrate to tender the  pardon.
\n\t      The   section   vests  the  court\t  to   which
\n\t      commitment  is  made,  with  power  to  tender
\n\t      pardon  or order the Committing Magistrate  or
\n\t      the  District  Magistrate\t to  tender   pardon
\n\t      during  the trial of the case but it does\t not
\n\t      take away the power confer-\n<\/p>\n
(1) 1954 Cr. L.J. 1638.\n<\/p>\n
737<\/span><\/p>\n
red  under  the proviso to section 337(1)  of  the  Criminal
\nProcedure Code.”\n<\/p>\n
The proviso contains an additional provision which  empowers
\nthe District Magistrate to tender pardon where the  offences
\nare under inquiry or trial.  The present case is covered  by
\nthe  proviso  to section 337 and not by section 338  of\t the
\nCriminal  Procedure  Code.   We hold,  therefore,  that\t the
\ntender\tof pardon by the District Magistrate on\t August\t 28,
\n1952, was valid”.\n<\/p>\n
In State of Andhra Pradesh v. Cheemalapati Ganeswara Rao,  &
\nAnr.<\/a> (1) one of the questions that came up for consideration
\nwas  whether  a pardon granted under section 337(1)  by\t the
\nAdditional  District Magistrate in a case, where an  inquiry
\nwas pending before. the District Magistrate, was illegal. it
\nwas  contended that under section 337 only the powers  of  a
\nDistrict Magistrate, namely, the powers under entry 7 (a) in
\nPart V of Schedule III of the Code of Criminal Procedure, as
\ndistinguished  from the power under the proviso to the\tsaid
\nsection,  can  be  conferred  upon  an\tAdditional  District
\nMagistrate.   This  Court,  having regard to  the  order  of
\nMadras\tGovernment  No. 3106 dated September  9,  1949,\t and
\nentry\t7(a)  in  Party\t of  Schedule  III,  rejected\tthis
\ncontention.  It is the view of this Court that :\n<\/p>\n
\t      “The power conferred by sub-section (1) of  s.
\n\t      337 on the different clauses of Magistrates is
\n\t      of  the  same character.\tThe power  to  grant
\n\t      pardon  in  a  case  pending  before   another
\n\t      Magistrate  is  no  doubt\t conferred  by\t the
\n\t      proviso only on the District Magistrate.\t But
\n\t      entry  7\t(a) in Part V of Sch.  III  when  it
\n\t      refers  to the power of a District  Magistrate
\n\t      under  s.\t 337(1) does not exclude  the  power
\n\t      under the proviso”.\n<\/p><\/blockquote>\n
The  decision referred to above clearly establish  that\t the
\npowers\tconferred on the District Magistrate and  the  other
\nMagistrates  under  section 337 are concurrent\tand  that  a
\nDistrict  Magistrate,  even after commitment, has  power  to
\ntender pardon.\tThe proviso to section 337(1) makes it clear
\nthat the District Magistrate, in addition to the Magistrates
\nreferred  to  therein,\thas power to  tender  pardon  during
\ninquiry\t into  or trial of the offence.\t  Though  the  above
\ndecisions  had no occasion to consider whether the  District
\nMagistrate  has power to tender pardon, when the  Magistrate
\nenquiring into the offence has once refused, we are not able
\nto  find any such restriction placed upon the power  of\t the
\nDistrict  Magistrate by the wording of the  section  itself.
\nAs  the power conferred by sub-section 1 of section  337  on
\nthe different classes of Magis–\n<\/p>\n
(1) [1964] 3 S.C.R. 297.\n<\/p>\n
738<\/span><\/p>\n
trate is concurent and is of the same character, it  follows
\nthat the power to tender pardon can be exercised by everyone
\nof   the  authorities  mentioned  therein  subject  to\t the
\nlimitation  specified in the section itself.  The mere\tfact
\nthat  a\t Magistrate of the First Class\tenquiring  into\t the
\noffence has declined to grant pardon, as in the case  before
\nus,  does  not take away the power or  jurisdiction  of\t the
\nDistrict  Magistrate to entertain a further application\t for
\ngrant  of  pardon.  Though the District Magistrate  has\t got
\npower to consider a further application, nevertheless, it is
\nneedless to state that he will have due regard to the  views
\nexpressed  by the Magistrate for refusing to  grant  pardon.
\nWe  must,  however, state that judicial\t propriety  requires
\nthat if a higher authority had declined to tender pardon,  a
\nlower  authority  should not grant pardon  except  on  fresh
\nfacts  which  were not and could not have  been\t before\t the
\nhigher authority when it declined to grant pardon.  Even  if
\npardon\thas been refused on one occasion, a further  request
\nmay  be\t made ,before the same Magistrate  or  the  District
\nMagistrate.  But such a further request can be\tentertained.
\nand considered only if fresh or additional facts are  placed
\nby the party concerned.\n<\/p>\n
The  above principles will apply even to  proceedings  under
\nsection\t 338.  Even after commitment, a District  Magistrate
\nwill  have  power  to grant pardon.  But  if  the  court  of
\nSession\t  had  declined\t to  grant  pardon,   the   District
\nMagistrate  will not on the same facts entertain  a  similar
\napplication  for grant of pardon.  It ‘is necessary to\tbear
\nin mind the principles stated above so that the\t authorities
\nunder  sections\t 337 and 338 can  exercise  jurisdiction  in
\nharmony\t in  order to further the interest  of\tjustice\t and
\navoid ‘conflicting orders being passed.\n<\/p>\n
The  conferment of concurrent powers is also to be  seen  in
\nsection\t 498.  Under sub-section 1, the High Court or  court
\nof  Session  has  got power to direct  that  any  person  be
\nadmitted to bail or to reduce the bail required by a  police
\nofficer\t or a Magistrate.  Even though the Court of  Session
\nmay have refused a request in this behalf for grant of bail,
\nthe  High  Court  can be approached for\t a  similar  relief.
\nUnder sub-section 2, again power has been given to the\tHigh
\nCourt or Court of Session to order the re-arrest of a person
\nadmitted to bail under sub-section
\nWhen  the legislature intended that two\t authorities  should
\nnot  exercise  jurisdiction on an identical matter,  it\t has
\nused  appropriate  language to that effect.   For  instance,
\nunder  section 436(1), the Sessions Judge and  the  District
\nMagistrate,  in\t addition  to  the  High  ‘Court  and\tSub-
\ndivisional  Magistrate, have been empowered to call for\t and
\nexamine\t the records of any proceedings before any  inferior
\ncriminal  court.   Though it may appear from  subsections  1
\nthat  a\t District  Magistrate can be moved  even  after\t the
\nsimilar\t relief\t has been refused by the Sessions  Judge  or
\nvice versa, the
\n739<\/span>
\nposition  is made clear by sub-section 4.  That\t sub-section
\nprovides  that if either the Sessions Judge or the  District
\nMagistrate  has been moved, no further application shall  be
\nentertained by the other of them.  Though under\t sub-section
\n1  both\t of them have concurrent power,\t nevertheless,\tsub-
\nsection\t 4 clearly places a restriction on their  powers  by
\nstating that if one of them had been moved, the other cannot
\nentertain an application for the- same purpose.
\nIn view of the decisions of this Court referred to above, it
\nis  not\t necessary for us to refer to the decisions  of\t the
\nHigh  Court  taking  one view or the other.   From  what  is
\nstated\tabove,\tit follows that the view of the\t High  Court
\nthat  when once the Magistrate’ enquiring into\tthe  offence
\nhad refused to grant pardon, the District Magistrate had  no
\njurisdiction  to  entertain  an\t application  for  the\tsame
\npurpose, is erroneous.\n<\/p>\n
The further question is whether the State should have  filed
\na  revision  against  the  order  of  the  Magistrate  dated
\nSeptember  27,\t1965, refusing to grant\t pardon\t instead  of
\napproaching  the District Magistrate for the  same  purpose.
\nThis raises the question whether an order refusing to  grant
\npardon is revisable ? The High Court has taken the view that
\nthe  said order is revisable and that the State, if  it\t was
\naggrieved, should have filed a revision before the  Sessions
\nJudge.\tWe have already referred to the fact that the  first
\nrespondent  had filed a revision before the  Sessions  Court
\nagainst\t the order of the District Magistrate June 1,  1966.
\nThis revision has been held by the High Court to be a proper
\none.   As we have held that the District Magistrate has\t got
\nconcurrent  powers  and\t that he  can  be  approached  under
\nsection\t 337  even after the Magistrate enquiring  into\t the
\noffence\t has declined to grant pardon, the question  whether
\nthe State should have filed a revision against the order  of
\nthe  Magistrate\t becomes  really  academic.   On  the\tview
\nexpressed by us, the State was justified in approaching\t the
\nDistrict Magistrate even after the Magistrate had refused to
\ngrant pardon.\n<\/p>\n
However, the question regarding the revisability of an order
\ngranting  pardon  arises  regarding the\t competency  of\t the
\nrevision filed ‘by the first respondent before the  Sessions
\nCourt challenging the order of the District Magistrate dated
\nJune  1, 1966.\tSection 435, which deals with the  power  to
\ncall  for  records  of inferior courts, takes  in  the\tHigh
\nCourt,\tSessions  Judge, District Magistrate  and  any\tSub-
\ndivisional  Magistrate empowered by the State Government  in
\nthat behalf.  The power is given to call for and examine the
\nrecords\t of  any proceedings before  any  inferior  criminal
\ncourt  for  the\t purpose  of satisfying\t itself\t as  to\t the
\ncorrectness, legality or propriety of “any finding, sentence
\nor order recorded or passed, and as to the regularity of any
\nproceedings of such inferior Court
\n740<\/span>
\nsection 337 or 338 is certainly an Order recorded or  passed
\nand  the revisional court has got jurisdiction\tto  consider
\nthe correctness, legality or propriety of such an order.  At
\nany rate, tender of a pardon is certainly a proceeding of  a
\ncriminal  court.   The revising authority can call  for\t the
\nrecords\t to  satisfy  itself as to  the\t regularity  of\t any
\nproceedings  of an inferior criminal court.  It should\talso
\nbe  noted  that\t sub-section 1A of section  337\t imposes  an
\nobligation on the Magistrate tendering pardon to record\t his
\nreasons\t for so doing.\tWhether a revisional authority\twill
\ninterfere  with\t the  order of an  interior  criminal  court
\ntendering  pardon, is altogether a different  matter.\tThat
\ndoes not mean that a revisional court has no jurisdiction to
\nentertain a revision against an order granting pardon.
\nThe  decision  that has been brought to our  notice  holding
\nthat  section 435 cannot be invoked in the case or an  order
\nmade  either under section 337 or under section 338 is\tthat
\nof  a learned single Judge of the Delhi High Court in M.  M.
\nKochar\tv.  The State(1).  The learned Judge has  held\tthat
\nthe  tender  of\t pardon and its\t acceptance  by\t the  person
\nconcerned  is  a matter entirely between the court  and\t the
\nperson to whom pardon is tendered and that a co-accused\t has
\nno power to challenge the same, as it is a purely  executive
\nor  administrative  action  and\t not  a\t judicial  decision.
\nTendering  of  pardon,\tit is further  stated,\tis  only  an
\nexercise  of one of the many prerogatives of the  sovereign.
\nAfter having held that the High Court’s jurisdiction  cannot
\nbe  invoked under section 435, the learned Judge  on  merits
\nheld that the tender of pardon was legal.\n<\/p>\n
This decision of the Delhi High Court was challenged  before
\nthis  Court  in\t Criminal Appeal No. 109 of  1968.   In\t its
\njudgment  dated\t September 16, 1968, this  Court  on  merits
\nagreed\twith the High Court that the tender of\tpardon\twas-
\nproper.\t  The question of the nature of the power  exercised
\nin  granting pardon and the other question whether an  order
\ngranting  pardon  was revisable by a superior  court,  were,
\nhowever, left open.  We have indicated earlier that an order
\ngranting  pardon is open to revision, but whether the  court
\nwhose powers are invoked for that purpose will interfere  or
\nnot,  is a matter depending upon the circumstances  of\teach
\ncase.\tAccordingly  we\t hold that  the\t first\trespondent’s
\nrevision before the Sessions Court was competent and  reject
\nthe second contention of Mr. Rana.\n<\/p>\n
Coming to the third contention of Mr. Rana, it has been held
\nby  this  Court in State of Andhra Pradesh  v.\tCheemalapati
\nGaneshwara  Rao & Anr.<\/a> (2) that “a pardon granted bona\tfide
\nis
\n(1) A.I.R. 1969 Delhi 21.\n<\/p>\n
(2) [1964] 3 S.C.R. 297.\n<\/p>\n
741<\/span><\/p>\n
fully  protected  by the provisions of section\t529  of\t the
\nCriminal  Procedure  Code”.  We have already  extracted\t the
\nrelevant  part of section 529.\tOn the view expressed by  us
\nthat the order of the District Magistrate granting pardon is
\nlegal  and valid, it is not necessary for the State to\trely
\non section 529, clause (g) in this case.\n<\/p>\n
In the result the order and judgment of the High Court dated
\nSeptember 11, 1968, in so far as it holds that the grant  of
\npardon by the District Magistrate was illegal are set  aside
\nand to that extent the appeal is allowed in part.  The order
\ndated June 1, 1966 of the District Magistrate, Kanpur,\twill
\nstand restored.\n<\/p>\n
S.C.\t\t\t   Appeal allowed in part.\n742<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U. P vs Kailash Nath Agarwal & Ors on 16 March, 1973 Equivalent citations: 1973 AIR 2210, 1973 SCR (3) 728 Author: C Vaidyialingam Bench: Vaidyialingam, C.A. PETITIONER: STATE OF U. P. Vs. RESPONDENT: KAILASH NATH AGARWAL & ORS. DATE OF JUDGMENT16\/03\/1973 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. ALAGIRISWAMI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-189623","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U. 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