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Gangadharanandagiri Swamiji vs #The State Of A.P., Rep. By on 21 March, 2002
Cites 35 docs - [View All]
The Indian Penal Code, 1860
Section 319 in The Indian Penal Code, 1860
Section 351 in The Indian Penal Code, 1860
Section 307 in The Indian Penal Code, 1860
Section 306 in The Indian Penal Code, 1860

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Andhra High Court

THE HON'BLE SRI JUSTICE T.CH.SURYA RAO

CRIMINAL REVISION CASE NO.946 OF 2000

21-03-2002

Gangadharanandagiri Swamiji

#The State of A.P., rep. by

Public Prosecutor and others.

!Counsel for the Petitioner: Mr. G.Sreenivasulu Reddy, Advocate.

^Counsel for the Respondent No.1: The Public Prosecutor

Counsel for the Respondent No.2: None appeared.

:ORDER:

This revision case has been directed against the order dated 08.08.2000 passed by the learned I Additional Judicial Magistrate of First Class, Proddatur, in Crl.M.P.No.1436 of 2000 in C.C.No.386 of 1999. The petitioner herein has been sought to be added as an accused in the above case for the alleged offences punishable under Sections 341 and 323 of the Indian Penal Code and under Section 3(1)(x) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Act' for brevity). Under the impugned order the C.C. has been converted into a Preliminary Registered Case (PRC), and the petitioner has been summoned to appear before the Court as an accused to face trial. The petitioner now seeks to assail the same in this revision case.

The Sub-Inspector of Police, Proddatur Urban, registered a case against two persons including the revision petitioner under Section 324 of the Indian Penal Code and under Section 3(1)(x) of the Act, on a complaint lodged by one M.Vijaya Kumar. Eventually, after the investigation, he laid the charge sheet against one Sanivarapu Vijayabhaskar Reddy, the second respondent herein, only under Section 341 of the Indian Penal Code omitting the petitioner. During the course of the trial, P.W.1-the de facto complainant had been examined and he deposed on oath that the revision petitioner abused him touching his caste, beat him and asked the other accused to tie him. The Assistant Public Prosecutor filed a memo immediately thereafter requesting the Court to add the charge under Section 3(1)(x) of the Act and to summon the revision petitioner as an accused in the case. A notice has been issued to the counsel of the petitioner. After having heard on either side, under the impugned order, the learned Magistrate ultimately directed the petitioner to be added as an accused and converted the C.C. into a PRC inasmuch as the offence punishable under Section 3(1)(x) of the Act is triable exclusively by the Special Court.

Despite the notice the second respondent, de facto complainant, failed to appear before this Court.

The learned counsel appearing for the revision petitioner contends that the chief-examination of the witness alone cannot be construed as evidence so as to invoke Section 319 of the Code of Criminal Procedure ('the Code' for brevity). It is his further contention that the power under Section 319 of the Code can be invoked only for the offence for which the cognizance has already been taken against the other accused and the Court is not competent to take cognizance of any fresh offence when the additional accused is sought to be impleaded. Although, the contention appears to be two fold, the learned counsel is very much vehement as regards the second contention. Even otherwise, recently the Apex Court in RAKESH v. STATE OF HARYANA1 held thus: "The contention that the term "evidence" as used in Section 319 CrPC would mean evidence which is tested by cross-examination cannot be accepted. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. The section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross- examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Once the Sessions Court records a statement of the witness it would be part of the evidence. There being no cross-examination, it would be a prima facie material which would enable the Sessions Court to decide whether the powers under Section 319 should be exercised or not. The word "evidence" occurring in sub-section (1) is used in a comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the court and from which the court can prima facie conclude that the person not arraigned before it is involved in the commission of the crime."

Therefore, the first contention of the learned counsel appearing for the revision petitioner merits no consideration.

Apropos the second contention, the historical background of Section 319 of the Code, the provision germane in the context for consideration, needs to be considered for better understanding of the matter. The corresponding provision in the old Code of 1898 is Section 351. Section 351 of the old Code may be extracted herein below thus:

"351. Detention of offenders attending Court. (1) Any person attending a criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.

(2) When the detention takes place in the course of any inquiry under Chapter XVIII or after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard."

[Emphasis is mine]

From a perusal of the above extracted provision, it is obvious that from the evidence if any person who is attending the Court appears to have committed any offence of which such Court can take cognizance he may be detained for the purpose of enquiry into or trial and in respect of that person the proceeding shall have to be commenced afresh and the witnesses re-heard. The provision is undoubtedly not hedged with any limitations save and except the one pertaining to the power to take cognizance by the Court. The expression used, inter alia, in the Section is "any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed" clearly indicates two aspects, namely, (i) that it shall appear from the evidence a person who is attending the Court has committed an offence; and (ii) that the offence is such that the Court can take cognizance. If the Court can take cognizance of the offence notwithstanding the fact that it is a different offence than the one for which the cognizance has already been taken and the trial has been in the process, the Court can detain the accused and as against that accused the proceeding shall be commenced afresh and the witnesses re-heard. The Section is found wanting in two situations, namely, the situation where the person who appears to have committed an offence during the course of the enquiry into or trial was not attending the Court; and the manner in which the cognizance will be taken as against that person. So as to make the Section fairly a comprehensive one realizing the two grey areas, the Law Commission in its 41st report recommended for suitable amendment of the said provision. It is expedient to extract herein below the relevant recommendation of the Law Commission thus:

"24.80. It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is only proper that a Magistrate should have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in S.351 for summoning such a person if he is not present in Court. Such a provision would make S.351 fairly comprehensive, and we think it proper to expressly provide for that situation.

24.81. Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in section 190, and are apparently exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under S.190(1)(c), or only in the manner in which cognizance was fist taken of the offence against the accused...............The question is important, because the methods of inquiry and trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is, that the whole case against all known suspects should be proceeded with expeditiously, and convenience requires, that cognizance against the newly added accused should be taken in the same manner as against the other accused. We, therefore, propose to re-cast S.351making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must be reheard in the presence of the newly added accused."

[Emphasis is mine]

It is obvious from the above excerpted report that the Law Commission made two recommendations, namely, (i) to add an accused who is not before the Court but concerned with that offence or in any connected offence and (ii) the procedure or mode of taking cognizance as against the newly added accused. These two additions, in the view of the Law Commission, would make the provision fairly a comprehensive one. Pursuant to the said recommendation, Section 319 of the Code has been enacted amending the same in a suitable manner, which may be extracted herein below thus:

"319. Power to proceed against other persons appearing to be guilty of offence: - (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested, or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

[Emphasis is mine]

Sub-section (1) of Section 351 of the old Code is akin to sub-section (3) of Section 319 of the present Code. Similarly, sub-section (2) of Section 351 of the old Code is akin to clause (a) of sub-section (4) of Section 319 of the present Code. Clause (b) thereof is a new provision. Sub-sections (1) and (2) of Section 319 are the two additions to Section 351 of the old Code. Thus, Section 319 of the present Code seeks to fill up the gap created in Section 351 of the old Code. It is obvious from a perusal of the said section that any person not being the accused before the Court who appears to have committed an offence during the course of any enquiry into or trial of an offence for which cognizance has already been taken, whether that person is attending the Court or not, he can be summoned and if he is added as an accused pursuant to the said decision of the Court, the mode of taking cognizance qua the newly added person is the same as in the case of the already arraigned accused. In other words, he is deemed to have been an accused when the Court has taken cognizance of the offence earlier. For this purpose, a legal fiction is created in clause (b) of sub-section (4) of Section 319 of the Code.

A critical examination of sub-section (1) of Section 319 of the Code shows that it should appear to the Court during the course of enquiry into or trial of an offence that any person not being the accused has committed an offence for which such person could be tried together with the accused and it should appear so from the evidence. The said Section envisages two requirements, namely, (i) that some other person, who is not arraigned as an accused in that case has committed an offence; and (ii) that for such offence, that person could as well be tried along with the already arraigned accused vide MICHAEL MACHADO v. CENTRAL BUREAU OF INVESTIGATION2.

In view of the contention that the newly added accused shall be tried for the offence already taken cognizance against the other accused alone, the second requirement requires further elucidation. The expression "has committed any offence for which such person could be tried together with the accused" has to be considered in the first instance in the above backdrop. The words "any offence" used inter alia in the above excerpted expression may apparently sound that it need not necessarily be the one for which the cognizance has already been taken by the Court and the process of trial is on. However, those words shall not be read in isolation so as to mean any other offence. The whole expression as excerpted herein above shall have to be read together and understood. If it is so read, the words "any offence" are not all comprehensive but they are hedged with a limitation that the offence shall be such that the newly added person could be tried together with the already arraigned accused. If that offence is the same offence, which the newly added person appears to have committed, there cannot be any difficulty. But, if that offence is a different offence which the newly added person appears to have committed, then the Court shall see whether the accused and the newly added person could be tried jointly for that offence or not. In this context, the words "could be tried together" used inter alia in the above excerpted expression gain significance. This automatically arouses the necessary curiosity as to when two persons could be tried together. In this context, Chapter XVII of the Code which deals with "Charges" is germane to be considered. It is in two parts. Part-A deals with form and content of charges and Part-B pertains to joinder of charges and joinder of accused. We are not concerned with Part-A in this judgment. Part-B contains Sections 218 to 223. Sections 218 to 222 deal with joinder of charges in respect of various offences committed by a single person. Section 223, however, deals with plurality of persons, who can be tried together, in other words, the joint trial of more than one person. Section 223 of the Code, therefore, is a relevant provision to be considered and the same may be extracted, insofar as it is relevant for the present purposes, herein below thus:

"223. What persons may be charged jointly: - The following persons may be charged and tried together, namely: -

(a) persons accused the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of same transaction;

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last-named offence;

(f) persons accused of offences under Sections 411 and 414 of the Indian Penal Code (45 of the 1860), or either of those sections in respect of stolen property the possession of which has been transferred by one offence; (g) person accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges: Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together."

A perusal of the said provision shows that the persons accused of the same offence committed in the course of the same transaction, the persons accused of an offence and the persons accused of an abetment or attempt to commit such offence, the persons accused of more than one offence of the same kind, the persons accused of different offences committed in the course of same transaction can be charged jointly. Clause (d) of Section 223 clearly envisages joint trial of persons who have committed different offences but in the course of the same transaction. Thus it is obvious as to when two persons could be tried together albeit for different offences but committed in the course of the same transaction.

Applying the said test, if we consider the expression "has committed any offence for which such person could be tried together with the accused", it is obvious that the newly added accused need not necessarily be for the same offence but it could be for a different offence or a connected offence, but the crucial condition being that offence shall be such that both the persons could be tried jointly. In other words, there shall not be any mis-joinder of persons and the newly arraigned accused could be tried for a different offence but the different offence should be committed in the course of the same transaction. When Section 319 of the Code came to be incorporated in the amended form in the new Code with an intention to cover up the gap contained in Section 351 of the old Code, the background under which the Section came to be incorporated, though not decisive, is very much germane for consideration in interpreting the provision. The intention is obvious, as can be seen from the 41st report of the Law Commission, that an accused can be added for the offence already taken cognizance of by the Court and also for any connected offence. Now, in the course of the same transaction, if different offences are committed by the different accused and when the person left out is sought to be added as an accused before the Court when it appears during the course of the evidence his involvement in the offence, if that person is left out on the ground that he cannot be tried for a different offence than what has already been taken cognizance of, by the Court, the very purpose of amending the Section would get frustrated. The main purpose of this provision is that the whole case against all known suspects should be proceeded with expeditiously and that being the main object when both the persons - one arraigned as accused before the Court and the order who is left out by the investigating agency - could be tried together for different offences but committed in the course of the same transaction and in the course of the evidence it so appears to the Court that left out accused has committed an offence and he could be tried along with the accused already before the Court, there is no point in saying that he cannot be added as an accused for a different offence although the said offence has been committed in the course of the same transaction along with the other accused. In such a case, despite the fact that the Court is satisfied from evidence that a person other than the accused before it has committed a different offence than the offence for which the Court had already taken cognizance qua the other accused, the Court has no option except to leave the offence without conducting any trial and the offender unpunished. Taking a hypothetical situation here that when more than one accused with the common intention of committing theft trespassed into a dwelling house and while committing the offence of theft in the course of the same transaction, one out of them committed an assault outraging the modesty of woman member of the house and as a matter of that even an offence of rape and, if for any reason, that offence had not been detected during the course of the investigation but had come to light during the course of the trial of the case, the Court shall have to proceed against that person who appears to have committed that offence of outraging the modesty of woman or as matter of that rape during the course of the same transaction while committing theft in the dwelling house. If on the premise that the offence that appears to have committed is an altogether different offence and, therefore, the person cannot be added as an accused, as regards the offence of outraging the modesty of woman or rape though disclosed during the course of trial, the Court shall have to remain as a mute spectator and the grave offence of outraging the modesty of woman or rape would go unpunished. Certainly that cannot be the object in incorporating the provision of Section 351 under the old Code and the amended provision of Section 319 under the present Code. The learned counsel appearing for the revision petitioner seeks to place reliance upon a Judgement of the Kerala High Court in ANNAMMA CHERIAN v. STATE OF KERALA3. Justice K.G.Balakrishnan, as His Lordship then was, was of the view that inasmuch as clause (b) of sub-section (4) of Section 319 of the Code creates a legal fiction that the case against the newly added accused may be proceeded as if he had been an accused when the Court took cognizance of the offence upon which the trial was commenced; the newly added accused shall, therefore, be tried only for the offence that had already been taken cognizance by the Court in respect of the other accused but not for any fresh offence. In KUMARI MISRA v. CHANDER ROSHNI4 a learned single Judge of the Allahabad High Court held in para 8 thus:

"8. The power under Section 319 can be invoked only for the offence already taken cognizance against other accused and the court is not competent to take cognizance of any fresh offence, if any additional accused is impleaded under Section 319, Cr.P.C........"

In the former judgment it is obvious that clause (b) of sub-section (4) of Section 319 of the Code has been considered de hors the other provision under sub-section (1) thereof. Clause (b) of sub-section (4) of Section 319 of the present Code, in my considered view is procedural in nature since it envisages the procedure as to the manner in which the cognizance can be taken qua the newly added accused. In the latter judgment a learned single Judge of the Allahabad High Court while summing up the case made a passing observation that the power under Section 319 could be invoked only for the offence already taken cognizance. Certainly, it was not germane in the context obtaining from the facts of that case for decision. In both the above referred judgments the back drop in which Section 319 in the amended form came to be incorporated in the Code has not been considered. With due respect and for the reasons enumerated herein above I cannot concur with the same. If a person is added as an accused invoking the provisions of sub-section (1) of Section 319 of the Code for the reasons discussed herein above, I see no inconsistency in between sub-section (1) and clause (b) of sub-section (4) of Section 319. Even for the different offence said to have been perpetrated in the course of the same transaction, the legal fiction works out and the offence could legitimately be deemed to have been taken cognizance of by the Court along with the other accused. Having regard to the above discussion, I am of the considered view that a person can be added as an accused invoking the provisions under Section 319 of the Code not only for the same offence but also for even a different offence but that offence shall be such that in respect of which both the accused could be tried together. In other words, the test enjoined under Section 223 of the Code should be satisfied and that is the only limitation engrafted on the power of the Court to add a new person as an accused during the course of an enquiry into or trial of an offence. Therefore, the second contention of the learned counsel appearing for the revision petitioner also merits no consideration. This then takes us to the other question whether the person could be added as an accused for an offence which is exclusively triable by a Court of Session. Here, in the instant case, according to the facts initially the crime has been registered for the offence punishable under Section 324 of the Indian Penal Code and under Section 3(1)(x) of the Act. The Investigating Officer, however, laid the charge sheet against one accused only for the offences punishable under Sections 323 and 341 of the Indian Penal Code. The facts disclosed that the said offences are said to have been committed by the persons mentioned in the First Information Report in the course of the same transaction at one and the same time. During the course of the evidence of P.W.1, it has been disclosed that the left out accused has committed an offence. In view of the provisions of Section 223 of the Code, the left out persons could be tried along with the accused already on record and it is not a case of mis-joinder of charges or mis- joinder of persons. Had the Court below applied its mind to the facts of the case, the initial cognizance could have been taken against the left out accused even though he has not been arrayed as accused by the Investigating Agency and nothing prevents the Court at that stage from issuing summons to him by taking cognizance of the case against him also. Vide SWIL LTD. v. STATE OF DELHI5. Now that the Court has taken cognizance only against the accused already arrayed before it by the Investigating Agency without considering the material on record and without caring to know as to why the other person is left out, when at a later point of time it is disclosed that he (left out person) too has committed an offence albeit that offence is exclusively triable by a Court of Session, I do not see any reason as to why he shall not be added. It may be mentioned here that the case which is pending before the Court is one triable by a Judicial Magistrate of First Class and it is not exclusively triable by a Court of Session. Had it been a case where it is exclusively triable by a Court of Session, the hands of the learned Magistrate are tied or fettered and he cannot do anything in the matter except to see whether the package sent by the prosecuting agency is in order before committing the case to the Court of Session. In that view of the matter, now the hands of the learned Magistrate are not fettered here. The case against the proposed accused being exclusively triable by a Court of Session and in view of the legal fiction contained in clause (b) of sub-section (4) of Section 319 of the Code, that case is taken cognizance of against the proposed accused along with the other accused in the first instance itself, I see no legal bar for taking cognizance of that offence which is exclusively triable by a Court of Session. Here, in this case, the learned Magistrate has issued summons to the revision petitioner and simultaneously directed the case to be registered as Preliminary Registered Case. Such course adopted by the learned Magistrate by no stretch of the imagination can be considered as illegal. In that view of the matter, the decision of the Apex Court in RAJ KISHORE PRASAD v. STATE OF BIHAR6 sought to be relied upon by the learned counsel appearing for the revision petitioner has no application to the present facts. I, therefore, see no illegality or material irregularity that has been committed by the learned Magistrate under the impugned order.

For the foregoing reasons, the Criminal Revision Case fails and is dismissed.

?1 (2001) 6 SCC 248

2 (2000) 3 SCC 262

3 1990 CRI.L.J. 1796

4 1994 CRI.L.J. 2157

5 (2001) 6 SCC 670

6 1996 CRL.LJ. 2523 (SC)

*THE HON'BLE SRI JUSTICE T.CH.SURYA RAO

+CRIMINAL REVISION CASE NO.954 OF 2000

%2-1-2002

#Konajeti Rajababu (A-1)

State of A.P., and another.

Counsel for the Petitioner: Mr.Y. Rama Rao, Advocate.

Counsel for the Respondent No1: The Public Prosecutor

Counsel for the Respondent No2: Mr. C.Praveen Kumar, Advocate

:ORDER:

The revision petitioner assails the order dated 12.06.2000 passed by the learned III Additional District and Sessions Judge, Krishna at Vijayawada, in Crl.M.P.No.286 of 2000 in S.C.No.159 of 1999.

The revision petitioner is A.1 in the said case and has been facing trial for the charge under Section 302 of the Indian Penal Code. The first respondent herein laid the charge sheet against four accused before the III Metropolitan Magistrate, Vijayawda, for the offence punishable under Section 302 read with 34 of the Indian Penal Code. It is alleged, inter alia, in the charge sheet that on 13.07.1997 at 22.30 hours when the deceased by name Naveenram along with Boena Sivaramakrishna @ Nani reached the house of the deceased on a scooter, A.1 to A.4 surrounded the deceased and the said Nani, A.1 after having enquired with the said Nani as to who among them was Naveenram and on being informed by Nani that the deceased was the said person, took out a knife from the Scooter and stabbed the deceased above the stomach, when A.2 all of a sudden caught hold of the deceased from behind, and A.3 and A.4 beat Nani (L.W.4) with hands thereby caused the death of the deceased with common intention to kill him as he was teasing the daughter of A.1, and thereby did commit the offence of murder punishable under Section 302 of the Indian Penal Code. The case against A.1 to A.4 was duly committed to the Sessions Court by the III Metropolitan Magistrate, Vijayawada, and the same was made over to III Additional District and Sessions Judge, Krishna at Vijayawada.

When the case was pending trial, A.3 in the case filed a petition under Section 307 read with 306 of the Code of Criminal Procedure ('the Code' for brevity) requesting the Court to tender pardon to him by promising to reveal and disclose the whole truth and give evidence on behalf of the prosecution in support of the charge framed against him and other accused in the crime. In that application - Crl.M.P.No.286 of 2000 - notice was given to the Additional Public Prosecutor on behalf of the State and after having heard the Additional Public Prosecutor, the learned Judge allowed the petition by tendering a conditional pardon to him and A.3 was directed ultimately to be discharged from the array of the accused and further directed to be shown as first witness for the prosecution. A.1, the prime accused in the case, assails that order, as aforesaid.

Sri T.Bal Reddy, learned senior counsel appearing for the revision petitioner-A.1, contends that no reasons whatsoever have been given by the learned Judge for tendering a conditional pardon and, therefore, the impugned order is not legal, proper and correct. The learned senior counsel further contends that the propriety of the impugned order shall be seen, particularly when there is an eyewitness on the side of the prosecution in having tendered a conditional pardon to A.3 three years after the alleged crime. Sri C.Padmanabha Reddy, learned senior counsel appearing for the second respondent herein-A.3 contends that the revision petition itself is not maintainable inasmuch as the impugned order is in the nature of an administrative order.

The crime in this case was occurred on 13.07.1997 wherein one person was murdered and the other was beaten. In connection with the said crime, A.3 was arrested on 22.07.1997. After completing the investigation, the Investigating officer laid the charge sheet on 15.10.1997. As can be seen from the facts, when the deceased and another person were coming on Scooter in front of the house of the deceased they were surrounded by A.1 to A.4. After having ascertained from the other person about the identity of the deceased, the deceased was done to death. Obviously, therefore, the second person is an eyewitness to the occurrence. His statement under Section 164 of the Code has been recorded by a competent Magistrate. At the stage of investigation, the investigating agency did not file any petition requesting the Court to tender pardon to A.3 in the crime. Perhaps, the Investigating Officer might have rest content with the type of evidence gathered by him in support of the charge as having been sufficient. It is only on his own volition A.3 filed a petition requesting the Court to tender pardon to him in Crl.M.P.No.286 of 2000 annexing therewith his affidavit duly sworn in before an Advocate. Inter alia, in his affidavit, he made a clean breast of the case implicating himself while implicating the other accused in the crime. The affidavit filed in Telugu by A.3 does contain the facts relating to the offence and the manner in which the offence has been perpetrated. Evidently, the Additional Public Prosecutor was heard by the III Additional District and Sessions Judge before passing the impugned order. In fact, at the request of the learned Additional Public Prosecutor, an adjournment was granted for hearing to enable the Additional Public Prosecutor to address the arguments. Under the impugned order, the learned Judge expressed his satisfaction that A.3 was intending to make a full disclosure of the facts and circumstances known to him, should pardon be tendered to him and having been further satisfied that A.3 had been directly concerned with the offence and, therefore, it was a fit case where conditional pardon could be granted so as to obtain the evidence at the trial, after having gone through the case record and the affidavit filed by A.3, allowed the petition ultimately.

In this backdrop, it is to be seen as to whether the impugned order suffers from any vice of illegality as contended by the learned senior counsel appearing for the revision petitioner-A.1?

It is expedient at the outset to have a glance at the relevant provisions in the Code before proceeding to adjudicate the present revision case. Although Section 307 of the Code is the relevant Section under which the pardon in this case was granted, Section 306 of the Code being the main Section should also be considered for better understanding of the matter. Both the provisions may be extracted hereunder thus:

"306. Tender of pardon to accomplice: -

(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, of 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 circumstances within this knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(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 witness in the Court of the Magistrate taking cognisance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in the custody until the termination of the trail.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognisance 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 cognisance 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.

307. Power to direct tender of pardon: -

At any time after commitment of a case but before judgement is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person."

While Section 306 of the Code enables the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or enquiry into, or the trial of, the offence, the tender of pardon to a person with a view to obtaining the evidence of that person supposed to have been directly or indirectly concerned in the offence, Section 307 of the Code empowers the Court after commitment of a case to it, to tender pardon with a view to obtaining at the trial the evidence of that person supposed to have been directly or indirectly concerned in the offence. The primary object under both these Sections is to obtain the evidence of an accomplice so as to facilitate conviction of others. A perusal of both the provisions leaves no room for any doubt that a wide power has been conferred upon the Court to tender a conditional pardon to a particular person with a view to obtaining the evidence of that person in support of the charge against the accused therein. Under sub- section (3) of Section 306, the Court is expected to record its reasons for tendering such pardon and should further record the factum of acceptance of the person to whom it was made. No other conditions have been engrafted under the said Section conditioning the power of the Court to grant such a pardon. The other conditions enjoined under sub-section (4) thereof are not the conditions engrafted on the power of the Court to grant pardon but they are procedural in nature inasmuch they ordain that the Court should examine the person to whom pardon has been tendered as a witness before taking cognizance of the offence, and should detain him in the custody until termination of the trial unless he has already been enlarged on bail. Obviously, the power of tendering pardon under these Sections hinges upon only one prerequisite, namely, obtaining of the evidence from the person to whom pardon is to be granted in connection with the offence being tried.

Then the question arises as to whether such a request for tendering pardon should emanate from the prosecution or it could be from the accused also. The learned senior counsel appearing for the revision petitioner, in this context, seeks to place reliance upon a Judgement of the Apex Court in LT.COMMANDER PASCAL FERNANDES v. STATE OF MAHARASHTRA AND OTHERS1. A three Judge Bench of the Apex Court held that there was nothing in the provision to show that the Court should be moved by the prosecution and it might consider an offer by an accused. That was a case where a pardon was tendered by the Special Court under Section 8(2) of the Criminal Law Amendment Act, 1952. When the trial in the case was fixed for various charges of conspiracy, cheating and criminal misconduct, one of the accused by name Jagasia made an application to the Court praying that he should be tendered pardon, made an approver and examined as prosecution witness. The reason given by him was that he had full and complete knowledge of the incident that had taken place between the accused inter se; and that he was in a position to disclose as to how the conspiracy was formed and several offences committed; and that he was making this offer in order to unburden the mental tension and in order to help the cause of justice. That application was vehemently opposed by the other accused in the case on the premise that it was essential for the prosecution to consider in the first instance to ask that a particular accused may be tendered pardon and on the further ground that granting pardon to him would be highly prejudicial to the defence of the other accused. The Special Judge tendered a conditional pardon to Jagasia, one of the accused. In the Revision before the High Court, the prosecution stated before the High Court that it had no objection to grant of pardon; and that it even welcomed the opportunity of having the evidence of an approver. The High Court having regard to the same dismissed the revision case. The Supreme Court in para 12 of its Judgement held that there could be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence and that person must necessarily be arraigned as accused before the Court. The Supreme Court further held that it might be possible to tender pardon to a person not so arraigned and that there is nothing in the language of the Section to show that the Special Judge must be moved by the prosecution and he might consider an offer by an accused. While so holding, the Supreme Court struck a note of caution and laid down the procedure for the guidance of the Court. In para 15 of its Judgement, it was held thus:

"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. 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 Judges 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 prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind 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."

[Emphasis is mine]

Sri T.Bal Reddy, learned senior counsel, invited my attention to the observations made by the Apex Court in para 14 of the said Judgement, which may be extracted herein below thus:

"The next question is whether the Special Judge acted with due propriety in his jurisdiction. Here the interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider."

Ultimately, the Apex Court considering the fact that the Public Prosecutor appearing in the High Court submitted that the prosecution also considers favourably the tender of pardon to Jagasia dismissed the appeal while striking a note of caution for the benefit of the Courts.

The Apex Court in JASBIR SINGH v. VIPIN KUMAR JAGGI2 placing reliance upon its earlier Judgement in PASCAL FERNANDES case (referred to supra) reiterated the same principle and held in para 18 thus:

"Although the power to actually grant the pardon is vested in the court, obviously the court can have no interest whatsoever in the outcome nor can it decide for the prosecution whether particular evidence is required or not to ensure the conviction of the accused. That is the prosecution's job."

That was a case where the request of the prosecution to tender a pardon to the respondent-Vipin Kumar Jaggi was rejected by the Sessions Judge under Section 307 of the Code. However, under Section 64 of the Narcotic Drugs and Psychotropic Substances Act, the Central Government granted him immunity from prosecution. When that was challenged before the High Court, it ended in dismissal. The Sessions Judge while rejecting the request of the prosecution under Section 307 of the Code was of the view that no purpose would be served at all in granting pardon to the first respondent as his evidence was weak while holding that such an approach on the part of the Sessions Court was not correct as at that stage it was not within its purview to assess the evidence. Ultimately, the Supreme Court upheld the order of the High Court. A three Judge Bench of the Apex Court in HARSHAD S.MEHTA v. STATE OF MAHARASHTRA3 had an occasion to consider again the provisions of Sections 306 and 307 of the Code qua Section 9(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. The relevant provisions in the Code and the said Act are akin. In para 37 of its Judgement, the Apex Court discussed its earlier Judgement in PASCAL FERNANDES case (referred to supra). That was a case where before the Special Court two of the accused filed petitions praying the Court for grant of burden. Those applications were supported by C.B.I. Earlier both the accused made statements under Section 164 of the Code making full disclosure of their participation in the offences and the participation of other accused in commission of the offences. The Special Court allowed both the applications by tendering conditional pardon, which was accepted by both the accused. The other accused in the crime sought revocation of that order. The main ground urged before the Court was that the Special Court had no jurisdiction to tender pardon in the absence of any express provision therefor in the Act. Inasmuch as the procedure envisaged in the Code applies to the cases before the Special Court also in the absence of any express provision therefor in the Act, that contention was repelled by the Apex Court. The second contention raised was non-compliance of the provisions of sub- sections (4) and (5) of Section 306 of the Code. The Apex Court held while following the Full Bench Judgement of the Calcutta High Court in ABDUL MAJID v. EMPEROR4 that the power to tender pardon stands alone and the other provisions are matter of procedure. In such situation, the matters of procedure are not applicable and it would not negate the power to grant pardon. The Apex Court held that all powers under Sections 306 to 308 of the Code to the extent applicable were available to the Special Court under the Act. Ultimately, the order granting pardon was upheld.

From the foregoing discussion with reference to the relevant provisions in the Code and the law laid down by the Apex Court, it can be summarised thus: 1) The power to grant pardon enjoined under Sections 306 and 307 of the Code is a substantive power and it rests on the judicial discretion of the Court. 2) The power of the Court is not circumscribed by any condition except the one, namely, that the action must be with a view to obtaining the evidence of any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence.

3) The Court has to proceed with great caution and on sufficient grounds recognising the risk which the grant of pardon involved of allowing an offender to escape just punishment at the expense of the other accused. 4) The secrecy of the crime and paucity of evidence, solely for the apprehension of the other offenders, recovery of the incriminating objects and production of the evidence otherwise unobtainable might afford reasonable grounds for exercising the power.

5) The disclosure of the person seeking pardon must be complete. 6) While tendering pardon, the Court should make an offer to the one least guilty among the several accused.

7) The reasons for tendering pardon must be recorded and also about the factum of accepting of pardon by the concerned.

Ordinarily, it is for the prosecution to ask that a particular accused out of several may be tendered pardon. It is because the State may not desire that any accused be tendered pardon as it does not need approver's testimony, or it may not also like the tendering of pardon to a particular accused because he may be the brain behind the crime or the worst offender. After all, the Court shall not be oblivious of the fact that the power which it exercises is not on its own behalf but on behalf of the prosecuting agency. Therefore, the power shall be exercised only when the prosecution joins in the request. This does not, however, preclude the accused from directly applying the Court. When the accused directly applies to the Court, the Court must first refer the request of the accused to the prosecuting agency and ask for a statement from the prosecution on the request of the accused. If the prosecution thinks that the tender of pardon will be in the interests of successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it would indubitably agree to the tender of pardon. The Court should, therefore, embark upon such a procedure in the interests of justice. Turning to the facts in the instant case, although no statement of the accused was recorded by the investigating agency during the course of investigation, a duly sworn affidavit containing full disclosure of the facts of the case has been annexed by the second respondent herein-A.3 to his petition in Crl.M.P.No.286 of 2000. The learned III Additional District and Sessions Judge directed a notice to be given to the Additional Public Prosecutor and after hearing him alone, he passed the impugned order. The learned Judge has also recorded his satisfaction about the necessity of the evidence and accepting of the pardon by the accused tendered to him.

At this juncture, the learned senior counsel appearing for the revision petitioner contends that the prosecution has already gathered the evidence of an eyewitness to the occurrence; therefore, there is no need or necessity to tender pardon to one of the accused. So as to buttress his contention, the learned senior counsel seeks to place reliance upon a Judgement of the Punjab and Haryana High Court in BHUP SINGH v. THE STATE OF HARYANA5. The Court held in the said Judgement that the power to grant pardon to an accomplice to become an approver should be exercised only in exceptional cases and one such case could be that but for the evidence of the accomplice it would otherwise not be possible to bring the guilt home to the other accused. That was a case where the prosecution was relying upon three eyewitnesses out of which two of them were the injured witnesses. At the stage of trial, one of the six accused by name Tulsi Ram applied to the trial Judge for grant of pardon under Section 307 of the Code. Although initially when the application for grant of pardon filed by the accomplice had come up for consideration, the State did not oppose but at the stage of hearing the Revision Case filed impugning the order granting pardon to the accomplice, the State chose not to support the application. The main contention in the Revision Case was that the trial Judge did not exercise its discretion in a sound manner inasmuch as there was no necessity to grant pardon as three eyewitnesses were already examined by the prosecution. In those circumstances, the Court held that the discretion to grant pardon should be exercised in exceptional cases and one such exceptional case would be that but for the evidence of accomplice it would otherwise be not possible to bring the guilt home to the other accused. The necessity to examine an accomplice depends upon the facts of each case and no hard and fast rule can be prescribed therefor. Adequacy or otherwise of the evidence to bring home the guilt to the accused affords a reasonable ground so as to conclude whether the discretion conferred on the Court can be exercised or not; or affords a reason to support a judicious exercise of the discretion but the number of eyewitnesses cannot be the criterion. Here, in the instant case, the case of the prosecution mainly hinges upon a sole eyewitness whose statement had been recorded under Section 164 of the Code. Although there is no legal bar to base a conviction on the sole testimony of the witness, but before doing so the testimony shall be found to be credible and pass the test of judicial scrutiny. Even a semblance of reasonable doubt might warrant a benefit of doubt to be given in the case. Under such circumstances, it cannot legitimately be concluded that the evidence gathered on the side of the prosecution so far is quite adequate. Therefore, in view of the peculiar facts in the instant case, it cannot legitimately be concluded that the discretion in this case has not been exercised in a judicious manner.

The learned senior counsel appearing for the second respondent herein-A.3 contends that the revision petition itself is not maintainable inasmuch as the impugned order being an order passed on administrative side. In support of his contention, the learned senior counsel seeks to place reliance upon a Judgement of the Delhi High Court in M.M.KOCHAR v. THE STATE6. The Delhi High Court was of the view that the grant of pardon either under the provisions of the Constitution of India or under the provisions of the Code of Criminal Procedure is the exercise of sovereign power and is nothing but an act of mercy and, therefore, even though under the provisions of sub-section (1-A) of Section 337 of the old Code the Court is expected to record its reasons, it could not be argued that such tender would become revisable by the High Court under Section 435 (old Code). The grant of pardon under the provisions of Articles 72 and 161 of the Constitution of India is certainly a prerogative of the sovereign power. The pardon can be granted even after the conviction of the accused. The consideration therefor at that stage is power of mercy. Unlike the same, tendering pardon to an accomplice under the provisions of Sections 306 and 307 of the Code is discretionary but that discretion is to be exercised judiciously basing upon some intelligible differentia. The Court is expected to give reasons in support of such discretion. Whether the jurisdiction vested in the Court to grant such pardon has been exercised judiciously or not can always be the subject matter of scrutiny by the Revisional Court. I am afraid, I cannot concur with the reasoning given by the learned Judge of the Delhi High Court with due respect. Otherwise, if the discretion is exercised arbitrarily by the Court and it is not amenable to the supervisory power of the High Court that might lead to disastrous consequences.

I, therefore, see no illegality or any irregularity in the impugned order and cannot therefore be said as not correct, legal and proper. For the foregoing reasons, the Criminal Revision Case fails and is dismissed.

?1 AIR 1968 SC 594

2 (2001) 8 SCC 289

3 (2001) 8 SCC 257

4 ILR (1993) 60 CAL. 652

5 1986(1) CRIMES 432

6 AIR 1969 DELHI 21