Ashok Sehgal Vs. State of H.P and Others - Court Judgment

1. This petition, under section 482 Cr.P.C. has been filed for quashing statements/ confessions of respondents No. 3 to 6 recorded by the Judicial Magistrate Ist Class, Solan, under section 164 Cr.P.C. and for quashing the orders of Judicial Magistrate Ist Class, Solan, granting pardon to respondents No. 3, 4, under sections 306 Cr.P.C.

2. The facts in brief, as per petitioner, are that an FIR No.10/2009 dated 9.7.2009, has been registered at State Vigilance and Anti Corruption Bureau, Solan against petitioner and one another. The respondent No. 2 is the complainant, but despite that he investigated the case. The respondent No. 2 was transferred from Special Investigation Unit to Police Station, State Vigilance and Anti Corruption Bureau, Shimla in July 2009; he had no power to investigate the case registered at Police Station, State Vigilance and Anti Corruption Bureau, Solan.

3. The respondent No. 2 had personal interest in false implication of the petitioner, he threatened the respondents No. 3 to 6 and got their statements/ confessions recorded, under section 164 Cr.P.C. before the Judicial Magistrate Ist Class, Solan. The respondent No. 2 knew that it is only Special Judge, Solan, who is competent to record such statements in view of provisions of Prevention of Corruption Act, 1988 (for short, the Act). The respondents No. 3 and 4 had earlier made statements before the Special Judge, Solan. The respondent No. 2 concealed the fact from the Judicial Magistrate Ist Class, Solan (for short, Magistrate) that respondents No. 3and 4 had earlier made statements before Special Judge, Solan.

4. The respondent No. 2 moved two applications before the Chief Judicial Magistrate, Solan (for short, CJM), who marked the same to Magistrate, Solan for disposal. The Magistrate, Solan was not competent to decide the applications, under section 306 Cr.P.C., during investigation of the offence committed under the Act. The Magistrate granted pardon on 7.1.2010 to respondent No. 4 and on 20.1.2010 to respondent No.3. The petitioner has assailed recording of statements under section 164 Cr.P.C. and granting pardon to respondents No. 3 and 4 under section 306 Cr.P.C.

5. It has been stated that Act is a special Act and prescribes special procedure in respect of investigation and trial of offence. The Magistrate has not followed the procedure in granting pardon under section 306 Cr.P.C and while recording statements under section 164 Cr.P.C. The grant of pardon under Section 306 Cr.P.C. and recording of statements under section 164 Cr.P.C. are liable to be quashed. The power to grant pardon vests only with the Special Judge under the Act and not even with the C.J.M., hence pardon granted by the Magistrate is honest, nullity and without jurisdiction.

6. The respondents No. 1 and 2 have contested the petition by filing reply. It has been stated that Section 5(2) of the Act is in addition to Section 306 Cr.P.C. It has no overriding effect over section 306 Cr.P.C. The section 306 is applicable to offence triable by the court of Sessions and court of Special Judge. The Metropolitan Magistrate or Judicial Magistrate, under section 164 Cr.P.C. may record any confession or statement made to him in the course of investigation, whether he or not has jurisdiction over the case. As per section 5(3) of the Act, the provisions of the Code of Criminal Procedure shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge.

7. The section 460 Cr.P.C. provides that if any Magistrate not empowered by law to tender a pardon under section 306 erroneously in good faith does that thing, his proceedings shall not be set-aside merely on the ground of his not being so empowered, therefore, the petition is not maintainable. The Special Investigation Team headed by respondent No. 2 was constituted by the competent authority for the investigation of the case vide office order dated 13.7.2009, therefore, respondent No. 2 was competent to investigate the case.

8. The respondents No. 5 and 6 voluntarily came forward toget their statements recorded, under section 164 Cr.P.C., and, therefore, their statements were recorded under section 164 Cr.P.C. by the Magistrate. The respondents No. 3 and 4 voluntarily came forward for tendering pardon. The applications were moved before the C.J.M., which were assigned by the CJM to Magistrate, who rightly recorded their statements and tendered pardon, which were voluntarily accepted by respondents No. 3 and 4. The provisions of the Act are in addition to Cr.P.C. and not in its derogation. The powers under section 306 Cr.P.C. to grant pardon and to record statement under section 164 Cr.P.C. are not taken away by the Act. The submission has been made for dismissing the petition.

9. The respondents No. 3, 5 and 6 contested the petition by filing joint reply. It has been stated that petitioner has no locus-standi to challenge the pardon granted to respondent No. 3. The respondents No. 3, 5 and 6 have stated that they have given statements voluntarily before the Magistrate without any pressure, undue influence or coercion. The respondents No. 3, 5 and 6 have prayed for dismissal of the petition. The respondent No. 4 has also filed the reply and has stated that there is no illegality in recording his statement, under section 164 Cr.P.C. and granting him pardon under section 306 Cr.P.C. by the Magistrate.

10. Heard. The learned counsel for the petitioner has confined his submission to the recording of statements of respondent No. 4 on 7.1.2010 and respondent No. 3 on 20.1.2010 and thereafter granting pardon to respondents No. 3 and 4 by the Magistrate on 20.1.2010 and 7.1.2010 respectively. He has submitted that Magistrate has no jurisdiction to tender pardon under section 306 Cr.P.C. at the stage of investigation. The case is registered under the Act and, therefore, only the Special Judge under the Act has the jurisdiction to grant pardon. The grant of pardon by the Magistrate to respondents No. 3 and 4 on 20.1.2010 and 7.1.2010, respectively is without jurisdiction.

11. The learned Assistant Advocate General has submitted that Magistrate has rightly granted pardon to respondents No. 3 and 4, in any case even if it is assumed that there is some defect in the pardon granted by the Magistrate, the same is saved by Section 460 Cr.P.C. The learned counsel appearing on behalf of private respondents have submitted that learned Magistrate has rightly granted pardon to respondents No. 3 and 4. It has been submitted that if pardon granted by the Magistrate is not sustainable for any reason then liberty may be reserved for applying fresh for granting pardon.

12. Section 306 Cr.P.C .is as follows:-

“306. Tender of pardon to accomplish.- (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstance within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission therefore.

(2) This section applies to—

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952).

(b) Any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub-section (1) shall record—

(a) His reasons for so doing;

(b) Whether the tender was or was not accepted by the person to whom it was made, And shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section

(1)--

(a) Shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) Shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under subsection (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case.--

(a) Commit it for trial--

(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable exclusively by that Court;

(b) In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.”

13. Section 5 of the Act is as follows:-

“5. Procedure and powers of Special Judge.- (1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.

(2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under section 307 of that Code.

(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974),shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.

(4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of Section 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be , apply to the proceedings before a Special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.

(5) A Special Judge may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted.

(6) A Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944). “

14. Section 337 of the Criminal Procedure Code 1898 was as follows:-

“Tender of pardon to accomplice.- [(1) In the case of any offence triable exclusively by the High Court or Court of Sessions, or any offence punishable with imprisonment. [ which may extend to seven years], or any offence under any of the following sections of the Indian Penal Code, namely, Sections [ 161, 165, 165A,] 216A, 369, 401, 435 and 477A, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof:

Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.

(1A) Every Magistrate who tenders a pardon under sub-section

(1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record: Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.]

(2) Every person accepting a tender under this section shall be examined as a witness in [the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any].

[(2A) In every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.]

[(2B) In every case where the offence is punishable under Section 161 or Section 165 or Section 165A of the Indian Penal Code or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947, and where a person has accepted a tender of pardon and has been examined under sub-section (2), then, notwithstanding anything contained in sub-section (2A), a Magistrate shall, without making any further inquiry, send the case for trial to the Court of the Special Judge appointed under the Criminal Law Amendment Act, 1952.]

(3) Such person [unless he is already on bail, shall be detained in custody until the termination of the trial.”

15. Section 8 of Criminal Law Amendment Act, 1952, is as follows:-

“Procedure and powers of Special Judges.- (1) A Special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1998, for the trial of warrant cases by Magistrates.

(2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on conditions of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal, abettor, in the commission thereof; and any pardon so tendered shall for the purposes of sections 339 and 339A of the Code of Criminal Procedure, 1998, be deemed to have been tendered under section 338 of that Code.”

16. In order to appreciate the contentions on either side, it is appropriate to refer to some case law on the point. In Kanta Prashad vs. Delhi Administration AIR 1958 SC 350, the Supreme Court has held as follows:-

“……It would seem, therefore, that although a Special Judge is a Court constituted under the Criminal Law (Amendment) Act yet, for the purposes of the Code of Criminal Procedure and that Act, it is a Court of session, Accordingly, we are of the opinion that although the offence was triable exclusively by the Court of the Special Judge the District Magistrate had authority to tender a pardon under S. 337 of the Code of Criminal Procedure as the Court of the Special Judge was, in law, a Court of Session.”

The Supreme Court further held as follows:-

“…..Under S. 8 (2) of the Criminal Law (Amendment) Act, 1952 the Special Judge has also been granted power to tender pardon. The conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a pardon under S. 337 of the Code. At the date the District Magistrate tendered the pardon the case was not before the Special Judge.

There seems to us, therefore, no substance in the submission made that the District Magistrate had no authority to tender a pardon to Ram Saran Das, the approver, and consequently the approver's evidence was inadmissible.”

17. In Rajendra Singh vs. State of Rajasthan 2003(4) R.C.R. (Criminal) 380, an FIR was registered against the petitioner for the offence under sections 7, 13(1)(d) of Prevention of Corruption Act, 1988 and section 120-B IPC and against Ramesh Purohit the then Block Development Officer. The Magistrate on the application of Rajendra Singh recorded his statement under section 164 Cr.P.C. and tendered him pardon under section 306 Cr.P.C. and sent his statement to Special Judge under sealed cover. After completion of investigation, challan was filed against both the accused ignoring the grant of pardon to the petitioner. The petition was filed under section 482 Cr.P.C. in the High Court. The question before the High Court was whether the petitioner could be tendered pardon by the CJM under section 306 Cr.P.C. in a case exclusively triable by the Special Judge. The pardon once tendered to an accused could be ignored and challan against him could be filed without first getting the order of grant of pardon set aside or cancelled. The High Court held that only an irresistible conclusion is that the Special Judge appointed under the Act is empowered to grant pardon to an accused person in case exclusively triable by him and the CJM or any other Magistrate is not empowered/ authorized or legally entitled to grant pardon in such a case to any accused in that case.

18. The Supreme Court in Bangaru Laxman vs. State (Through CBI) and another (2012)1 SCC 500, has held as follows:-

“19. We are unable to appreciate the aforesaid contentions raised by the learned counsel. It goes without saying that under Section 5(2) of the P.C. Act the power of the Special Judge to grant pardon is an unfettered power subject to the stipulation made in the Section itself. Such power can be exercised at any stage and there is no stipulation that the power can be exercised by the Special Judge only at the stage of trial as urged by the appellant's counsel. The deeming clause which has been introduced in Section 5(2) is for a very limited purpose mentioned in Section 5(2) of the P.C. Act. Sub-Sections 1 to 5 of Section 308 have already been set out above and it is clear therefrom that the said provisions have been enacted for a different purpose, namely, for holding trial of a person for not complying with the conditions of pardon.”

 “23. Following the aforesaid well-settled principle, as we must,we hold that the deeming provision introduced in Section 5(2) of the P.C. Act is not for fettering the power of the Special Judge to grant pardon in terms of Section 306 of the Code. The purpose of introducing the deeming provision in Section 5(2) of the P.C. Act is manifest from the text of Section 5(2), namely, the same is introduced only for the purposes of sub-sections 1 to 5 of Section 308 of the Code and it is only for the said purpose that the sanction is deemed to have been tendered under Section 307 of the Code.”

“40. Thus, on a harmonious reading of Section 5(2) of the P.C. Act with the provisions of Section 306, specially Section 306(2)(a) of the Code and Section 26 of the P.C. Act, this Court is of the opinion that the Special Judge under the P.C. Act, while trying offences, has the dual power of the Session Judge as well as that of a Magistrate. Such a Special Judge conducts the proceedings under the court both prior to the filing of charge sheet as well as after the filing of charge sheet, for holding the trial.”

“42. In view of the discussion made above, this Court is of the opinion that power of granting pardon, prior to the filing of the charge sheet, is within the domain of judicial discretion of the Special Judge before whom such a prayer is made, as in the instant case by the prosecution.”

19. The Supreme Court in Bangaru Laxman (supra) has held that the deeming clause in Section 5(2) of the Act is for a very limited purpose mentioned in Sub-Sections 1 to 5 of Section 308 of the Code. It has also been held that Special Judge under the Act has the dual power of the Sessions Judge as well as that of a Magistrate. The Section 306 of the Cr.P.C. gives power to Magistrate first class inquiring into or trying the offence, at any stage of the inquiry or trial to tender a pardon. It has not been held that Magistrate under Section 306 Cr.P.C. has no power to tender pardon. Section 337 of 1898 of the code had also provided that the District Magistrate, a Presidency Magistrate, a Sub Divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry or trial, tender a pardon.

20. In Kanta Prashad (supra) after noticing Section 8(2) of the Criminal Law ( Amendment) Act, 1952 it has been held that conferment of power to tender pardon on the Special Judge in no way deprives the District Magistrate of power to grant pardon under Section 337 of the 1898 code. The section 5(2) of the Act in substance is same as Section 8(2) of the Criminal Law (Amendment) Act, 1952. In view of the interpretation given by the Supreme Court an irresistible conclusion is that Magistrate under Section 306 Cr.P.C. has power to tender pardon in a case arising under the Act within the parameters laid in Section 306 Cr.P.C. and the law laid down by the Supreme Court. The Special Judge has also power to tender pardon in a case arising under the Act. Thus, contention of learned counsel for the petitioner has no force that Magistrate under no circumstance has power to tender pardon under Section 306 Cr.P.C. in a case arising under the Act.

21. In the present case Magistrate tendered the pardon during investigation of the case. The alternative submission of learned counsel for the petitioner is that Magistrate has no power to tender pardon during investigation under Section 306 Cr.P.C. and therefore, tender of pardon granted by Magistrate in the present case is without jurisdiction as Magistrate had no power to tender pardon during investigation. The submission made by learned counsel for the petitioner appears to be attractive but has no force in view of Section 460 Cr.P.C. The Section 460 Cr.P.C. provides irregularities which do not vitiate proceedings and includes tender of pardon under Section 306 Cr.P.C. The Section 460 Cr.P.C. is as follows:-

“If any Magistrate not empowered by law to do any of the following things, namely:-

(a) to (f) xxxxxxxxxxxx

(g) to tender a pardon under section 306;

(h), (i) xxxxxxxxx

erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.”

22. It has been stated in the petition that respondent No.2 moved two applications before Chief Judicial Magistrate, Solan for disposal. The Magistrate granted pardon on 7.1.2010 to respondent No.4 and on 20.1.2010 to respondent No.3. There is no averment in the petition that Magistrate while granting pardon to respondents No.3,4 did not act bonafide or Magistrate has acted malafide or due to any other extraneous reason. In absence of plea of malafide or lack of bonafide it can be safely presumed that Magistrate while granting pardon to respondents No.3,4 acted bonafide. The applications were filed for tendering pardon before Chief Judicial agistrate. It cannot be said that Chief Judicial Magistrate had no j risdiction to entertain applications for grant of pardon in a case arising out under the Act during investigation.

23. The Chief Judicial Magistrate marked the applications to the Magistrate who as part of his duty took up the applications and tender pardon to respondents No.3,4. There is no specific averment in the petition raising grievance against procedural illegality committed by Magistrate while granting pardon. The grievance has been raised regarding the jurisdiction of Magistrate to tender pardon. It has already been held that Magistrate in a given situation has jurisdiction to tender pardon in a case arising under the Act. The act of magistrate tendering pardon to respondents No.3,4 during investigation is protected by Section 460(g) Cr.P.C. when it has been found that Magistrate has acted while tendering pardon to respondents No.3, 4 bonafide erroneously in good faith.

24. In State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850 it has been held that a pardon granted bona fide is fully protected by the provisions of Section 529 of 1898 Cr.P.C. The Section 529(g) of 1898 provides, if any Magistrate not empowered by law to tender a pardon under Section 337 or Section 338 but erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. Thus seen from any angle recording of statements of respondent No.4 on 7.1.2010 and respondent No.3 on 20.1.2010 and thereafter granting pardon to respondents No.3,4 on 20.1.2010 and 7.1.2010 respectively cannot be said to be wrong and illegal.

25. In view of above discussion, petition fails and is accordingly dismissed. The pending applications if any are also disposed of.