M.N. Bhandari, J.
1. By this criminal misc. petition, a challenge is made to the order dated 16.12.2014, whereby, application submitted by the petitioner under section 306 Cr.P.C. for pardon was dismissed as was filed without first making a request to the prosecution to examine the petitioner as their witness.
2. It is stated that dismissal of the application is not proper. The court should have first sent it to the prosecution for their comments and thereupon to decide the application. The court dismissed the application mainly on the ground that before filing it, prosecution was not requested to produce accused-applicant as their witness. The court failed to consider scope of section 306 Cr.P.C. while passing the order, thus impugned order may be quashed with a direction to the court below to accept the application.
To appreciate the scope of section 306 Cr.P.C., this court requested Mr. Mahendra Singh, learned Advocate to assist the court.
3. Learned counsel Mr. Mahendra Singh referred the judgment of the Hon'ble Supreme Court in the case of "Lt Commander Pascal Fernandes versus State of Maharashtra and Ors.", [: AIR 1968 SC 594]. Therein, para 15 explains the process on an application under section 306 Cr.P.C.
4. A further reference of the judgment in the case of "A. Devendran versus State of T.N.", [ : (1997) 11 SCC 720] has also been given. Therein, para 13 explains the issue as to how the court should proceed as and when application under section 306 Cr.P.C. is filed.
The last judgment is in the case of "Jasbir Singh versus Vipin Kumar Jaggi and Ors." [ : (2001) 8 SCC 289]. Therein, referring to the earlier judgment in the case of Lt. Commander Pascal Fernandes (supra), the issue has been answered.
5. According to learned counsel Mr. Mahendra Singh, as and when application under section 306 Cr.P.C. is filed by the accused himself and not by the prosecution, the court should seek comments of the prosecution. In view of above, the court below should have first referred the request to the prosecuting agency as the court itself should not enter the ring as a veritable director of the prosecution. According to him, such applications are generally filed by the prosecution to bring home the truth, that too, in heinous offence.
6. Learned counsel for the petitioner Mr. Kapil Prakash Mathur has referred the judgment in the case of "State of Himachal Pradesh versus Surinder Mohan and Ors.", [ : AIR 2000 SC 1862]. Reference of para 11 is given where procedure has been explained. The similar issue has been decided by this court in the case of "Satish and Anr. versus State of Rajasthan", [ : 2007 CrLJ 3672]. The prayer is accordingly to quash the impugned order and accept the application moved by the accused petitioner under section 306 Cr.P.C. Learned P.P. has opposed the petition.
7. I have considered rival submissions of the parties and perused the record.
8. The application under section 306 Cr.P.C. was filed by the accused petitioner to seek pardon. He has shown himself to be not only one of the co-accused but an eye witness also. The application aforesaid was dismissed as the prosecution was not approached to produce him as their witness. It was also on the ground that two witnesses have already been examined by the court.
Before going through the reasoning given by the court below to find out as to whether it is legally sustainable or not, it would be gainful to refer the judgments cited at the Bar.
9. Learned counsel Mr. Mahendra Singh, assisting the court, has referred the judgment in the case of Lt. Commander Pascal Fernandes (supra). Para 15 of the said judgment would be relevant and is quoted thus-
"15. In this case the Special Judge made no effort to find out what Jagasia had to disclose. The English law and practice is (a) to omit the proposed approver from the indictment, or (b) to take his plea of guilty on arraignment, or (c) to offer no evidence and permit his acquittal, or (d) to enter a nolle prosequi. In our criminal jurisdiction there is a tender of a pardon on condition of full disclosure. Section 8(2) of the Criminal Law Amendment Act is enabling. Without recourse to it an accused person cannot be examined as a witness in the same case against another accused. To determine whether the accused's testimony as an approver is likely to advance the interest of justice, the Special Judge must have material before him to show what the nature of that testimony will be. Ordinarily it is for the prosecution to ask that a particular accused, out of several may be tendered pardon. But even where the accused directly applies to the Special Judge, he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prosecuting joins tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took on himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the public prosecutor on the proposal. But since the Public Prosecutor, when appearing in the High Court, stated that the prosecution also considered favorably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided. Since the prosecution in this case also wants that the tender of pardon be made it is obvious that the appeal must fail. It will accordingly be dismissed."
10. The para quoted above answers as to how the application submitted by the accused under section 306 Cr.P.C. is to be dealt with. The application can be filed by the prosecution or by one of the accused, out of several. If the application is filed by one of the accused, the court should first refer it to the prosecuting agency and then to pass an appropriate order. The court should not enter the ring as a veritable director of the prosecution. The power, which the court exercises is not on his own behalf but on behalf of the prosecuting agency, thus it may be exercised only when prosecution agency joins to the request of pardon. The prosecuting agency is the suitable agency to make comment as to whether pardon would be in the interest of successful prosecution of other offenders, whose conviction would not be easy without testimony of the applicant making the application under section 306 Cr.P.C. The Judge himself should not take the task to determine the propriety of pardon. Similar issue was decided by the Hon'ble Supreme Court in the case of A Devendran (supra). Para 13 of the said judgment is relevant, thus quoted hereunder-
"13. A contention had been raised by Mr. Muralidhar, learned Counsel for the appellants to the effect that the statement of the approver being exculpatory in nature and his entire statement having revealed that he was merely a bystander and was compelled to do something at the behest of accused Devendran, the said evidence of the approver should be rejected. In support of such contention reliance has been placed on the decisions of this Court in the case of Ravinder Singh v. State of Haryana, Chandan v. State of Rajasthan and Rampal Pithwa Rahidas v. State of Maharashtra. In Ravinder case this Court has observed that:
"12. An approver is a most unworthy friend, if at all, and he having bargained for his immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. Secondly, once that hurdle is crossed, the story given by the approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt."
In Chandan's case this Court held:
"His evidence has been read by the counsel for the parties before us and his evidence clearly indicates that he attempted to suggest that he did nothing. Neither he stated that he participated in looting nor in injuring or attacking the deceased. Reading to this evidence clearly indicates that he has claimed to be a spectator at every movement but has not participated at any stage. Apart from it the initial story appears also to be unnatural as according to him, he did not know any one of these accused persons but a month before the incident they took him into confidence and told him to join them. After reading the evidence of the witness as whole apparently the impression created is that the version does not appear to be a natural version. In this view of the matter, in our opinion, the testimony is not such which inspires confidence."
In Rampal Pithwa case this Court observed:
"From all the attendant circumstances, we are satisfied that the approver Ramcharan is not a reliable witness; his arrest was intrinsically unnatural and his self-confessed participation in the crime without taking any active part in it is unacceptable. The approver has claimed to be a spectator of every fact and of every moment but asserted that he did not participate in the assault at any stage and remained at a distance taking care of the clothes of some of the co-accused. His statement is almost of an exculpatory nature. His statement as a whole does not inspire confidence. His story is not worth of credence. We find ourselves unable to place any reliance on his untrustworthy and unreliable evidence...."
All these aforesaid three cases deal with the question as to what extent a Court can rely upon the evidence of an approver. Whether the evidence of an approver can be relied upon by a Court would depend upon the facts and circumstances of the case. As has been indicated by this Court in the case of Suresh Chandra (supra) that when heinous crime is committed in a manner leaving no clue or any trace is available for its detection, pardon is granted to one of the accused persons for apprehending other offenders and for production of the evidence which otherwise is unobtainable. This Court held: "The dominant object being that the offenders of the heinous and grave offences do not go unpunished, the Legislature in its wisdom considered it necessary to introduce Section 306 and confine its operation to cases mentioned in it. The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence."
11. The real culprit should not go unpunished, thus the legislature, in their wisdom, considered it necessary to introduce section 306 Cr.P.C. and apply its operation to the category of cases mentioned therein. Where heinous offence has been committed by several persons, then with the aid of the evidence of the person granted pardon to the offence, may bring the truth.
12. It is to prevent escape of the offender from punishment in heinous offence for lack of evidence. In the case of Jasbir Singh (supra), earlier judgment in the case of Lt. Commander Pascal Fernandes (supra) has been referred and the same principal has been reiterated. In the case of Surinder Mohan and Ors. (supra) the issue has been dealt with in para 11 of the said judgment, which is quoted hereunder- "11. From the aforesaid Section 306 it can be stated that-
(1) the purpose of the Section is to obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence 'during investigation, inquiry or trial';
(2) the Chief Judicial Magistrate or Metropolitan Magistrate is empowered to tender a pardon to such person 'at any stage of investigation or inquiry into or the trial of the offence';
(3) the condition for tender of such pardon is that the person is to make a full and true disclosure of the whole circumstances within his knowledge relating to the offence;
(4) a person accepting pardon under Sub-section (1) is to be 'examined' as a witness in the court of Magistrate taking cognizance of the offence and in subsequent trial, if any.
6. Further, if the case is committed for trial to the Court of Sessions, Section 307 empowers the Sessions Court trying the case to tender a pardon on the same conditions to such person before the judgment is passed."
13. The Hon'ble Apex Court has elaborately considered the purpose of the section 306 Cr.P.C. and provided guidelines as to how the court should exercise its power under section 306 Cr.P.C.
14. It is a case where application under section 306 Cr.P.C. has not been filed by the prosecution but by the co-accused. In the circumstances aforesaid, the exercise as directed by the Hon'ble Apex Court in the case of Lt. Commander Pascal Fernandes (supra), was required to be undertaken.
The court below has committed an error while dismissing the application without seeking comment or the statement of the prosecution. The judgment referred by learned counsel for petitioner i.e. Surinder Mohan (supra) would also apply. Looking to the fact that the application herein is not filed by the prosecution but is by the co-accused, the judgments cited by both the counsel can be applied. It is by initiating exercise as given in the case of Lt. Commander Pascal Fernandes (supra).
15. In view of the discussion made above, impugned order is set aside with remand of the case to the court below. It is with a direction to seek comments or statement of the prosecuting agency on the application under section 306 Cr.P.C. After getting the statement/comments from the prosecution, further exercise be undertaken as explained in the judgments. The petition is disposed of accordingly.
16. Before parting with the judgment, I record appreciation of Mr. Mahendra Singh, Advocate, who has provided assistance to the court.