1997 Supreme(SC) 1362

1997(9) Supreme 237
Supreme Court of India
(From Madras High Court)
G.N. Ray and G.B. Pattanaik, JJ.
A. Deivendran through Supreme Court Legal Services Committee etc. —Appellants
versus
State of Tamil Nadu through the Secretary,­ Department of Home, Fort St. George, Madras —Respondent
Criminal Appeal No. 987 of 1997
(@ Special Leave Petition (Crl.) No. 487 of 1996)
With
Criminal Appeal No. 988 of 1997
(@ Special Leave Petition (Crl.) No. 3598 of 1996)
Decided on 21-10-1997
Counsel for the Parties :
For the Appellants : S. Muralidhar and Ms. Neeru Vaid, Advocates.
For the Respondents : R. Mohan, Sr. Advocate, V.G. Pragasam, Advocate.

Important Point
Once a case is committed to the Court of Sessions then it is only that Court to which the proceedings have been committed can tender pardon to a person and the Chief Judicial Magistrate cannot be said to have concurrent jurisdiction for tendering pardon.

Headnote:(i) Criminal Procedure Code, 1973—Section 307—Approver—Power to tender pardon to an accused under Section 307—Case committed to Court of Sessions—Only that Court to which proceedings have been committed can tender pardon—Chief Judicial Magistrate cannot have concurrent juris­diction for tendering pardon—Pre-conditions for exer­cise of power under Section 10(3) Cr.P.C.—Expression ‘trial’ used in sub-section (1) Section 306 Cr.P.C.—Meaning and scope—If Chief Judicial Magistrate tenders pardon even after commitment of proceedings—Not a curable irregulari­ty within the ambit of clause (g) of Section 460 of the Code.

       Held : On a plain reading of the provisions contained in Sections 306 and 307 of the Code and on examining the changes that have been brought about by the legislature from the corresponding provisions of the old Code, the conclusion is irresistible that under the new Procedure Code of 1973 once a case is committed to the Court of Sessions then it is only that Court to which the proceedings have been committed can tender pardon to a person and the Chief Judicial Magistrate cannot be said to have concurrent jurisdiction for tender­ing pardon. (Para 6)

       Further held that a Session Judge has been empowered to make provision for disposal of any urgent application in certain contingencies by requiring an Additional or Assistant Sessions Judge or in their absence the Chief Judicial Magis­trate to deal with an application which otherwise would have been dealt with by the Sessions Judge. This power can be exercised when the Sessions Judge himself is absent or is unable to act. Then again Chief Judicial Magistrate can be required to act under this sub-section not merely when the Sessions Judge himself is absent or unable to act but also when there is no Additional or Assistant Sessions Judge. The plain and unambiguous language of Section 307 of the Code makes it explicitly clear that after the commitment of a case the power to tender pardon lies, under the Code, with the court to which the commitment is made and not with any other Magistrate including the Chief Judicial Magistrate. Once a commitment is made the committing Magistrate no longer retains juris­diction over the proceedings and that apart the unambiguous language of Section 307 of the Code does not confer such power on a Magistrate to tender pardon after a case is committed to the Court of Sessions. The expression ‘trial’ used in sub-section (1) of Section 306 would, therefore, convey the meaning those cases which are triable either by a Magistrate or the Chief Judicial Magistrate. In other words, in respect of those cases which are triable by a Magistrate, while the Magistrate of First Class inquiring into or trying the offence can tender pardon at any stage of inquiry or trial, the Chief Judicial Magistrate can tender pardon at any stage of investigation, or inquir­ing into or the trial. Further a Magistrate First Class who is in session of the case can tender pardon in course of inquiry or trial of the said case while the Chief Judicial Magistrate or Metropolitan Magistrate can tender pardon even though the trial is pending before another First Class Magistrate. But by no stretch of imagination it can be construed that ­under Section 306(1) of the Code a Chief Judi­cial Magistrate or Metropolitan Magistrate has a power to grant pardon even after the commitment of the proceedings to the Court of Sessions. (Para 7)

       Section 460, no doubt cures the ­irregularity specified in the Section if it is committed by a Magistrate not empowered by the law provided he committed irregularity erroneously in good faith. Clause (g) re­lates to tender pardon under Section 306. It would, therefore, appear that a Magistrate who was not empowered under Section 306 to tender pardon but actually tenders pardon in good faith ­erroneously then such an irregularity would be curable. Section 460 can have no refer­ence to an act of a Magistrate who is empowered under Section 306 but does not possess the jurisdiction after an order of commitment is passed. The Chief Judi­cial Magistrate no doubt was authorised under Section 306 of the Code to tender pardon in course of an investiga­tion, inquiry or trial before the committal of the proceedings to the Court of Sessions. But after commitment of the proceedings he does not have jurisdiction to grant pardon and in such a case if the said Chief Judicial Magistrate tenders pardon then that would not be a curable irregularity within the ambit of clause (g) of Section 460 of the Code. (Para 8)

       (ii) Criminal Procedure Code, 1973—Sections 306(4)(a) and 307—Approver—Accused granted pardon after case committed to Court of Sessions—Would it be necessary to comply with sub-section (4)(a) of Section 306 of the Code?—(No)—Non examination of approver as a witness after grant of pardon—Whether vitiates entire proceeding? —(No).

       Held : A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triably by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the pro­ceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of sub-section (4) of Section 306 are not attracted. The procedural requirement under sub-section (4)(a) of Section 306 to examine the accused after tender­ing pardon cannot be held to be a condition of grant of pardon. When the legislature in Sec­tion 307 have made specific reference to only on “such conditions” and not to the other procedures in Section 306 it would not be a rule of interpretation to hold that even sub-section (4)(a) of Section 306 would also be applicable in such a case. (Para 10)

       (iii) Criminal Trial—Approver —Evidence of—Not entirely of excul­patory nature—Extent of corroboration required—There must be some addi­tional evidence rendering it probable that story of accomplice is true—Corroboration could be both by direct or circumstantial evidence.

       Held : There cannot be any dispute with the proposition that ordinarily an approver’s statement has to be corroborated in material particulars. Certain clinching features of involvement disclosed directly to an accused by an approver must be tested qua each accused from inde­pendent credible evidence and on being satisfied the evidence of an approver can be accepted. What is the extent of corroboration that is required before the acceptance of the evidence of the approver would depend upon the facts and circumstances of the case. The corroboration required, however, must be in material particular connecting each of the accused with the offence. In other words the evidence of the approver implicating several accused persons in commission of the offence could not only be corroborated generally but also qua each accused. But that does not mean that there should be independent corroboration of every particular circumstance from an independent source. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true. Corroboration also could be both by direct or circumstantial evidence. (Para 13)

       (iv) Criminal Procedure Code, 1973—Section 465—Applicability—Provision cannot be applied to a patent defect of jurisdiction—Pardon to accused tendered by a Court of incompetent jurisdiction—Provisions of Section 465 held not applicable.

       Held : The sole object of the Section is to secure justice by preventing the invalidation of a trial already held, on the ground of technical breaches of any provisions in the Code causing no prejudice to the accused. But by no stretch of imagination the aforesaid provisions can be attracted to a situation where a Court having no jurisdiction under the Code does something or passes an order in contravention of the mandatory provisions of the Code. In view of our interpretation al­ready made, that after a criminal proceeding is committed to a Court of Sessions it is only the Court of Sessions which has the jurisdic­tion to tender pardon to an accused and the Chief Judicial Magistrate does not possess any such ­jurisdiction, it would be impossible to hold that such tender of pardon by the Chief Judicial Magistrate can be accepted and the evidence of the approver thereafter can be considered by attracting the provisions of Section 465 of the Code. The aforesaid provision cannot be applied to a patent defect of jurisdiction. Then again it is not a case of reversing the sentence or order passed by a Court of competent jurisdiction but is a case where only a particular item of evidence has been taken out of consideration as that evidence of the so-called approver has been held by us to be not a legal evi­dence since pardon had been tendered by a Court of incompetent juris­diction. In our opinion, to such a situation the provisions of Section 465 cannot be attracted at all. It is true, that procedures are in­tended to subserve the ends of justice and undue emphasis on mere technicalities which are not vital or important may frustrate the ends of justice. The Courts, therefore, are required to consider the gravi­ty of irregularity and whether the same has caused a failure of jus­tice. To tender pardon by a Chief Judi­cial Magistrate cannot be held to be a mere case of irregularity nor can it be said that there has been no failure of justice. It is a case of total lack of jurisdic­tion, and consequently the follow up action on account of such an order of a Magistrate without jurisdiction cannot be taken into con­sideration at all. (Para 14)

       (v) Evidence Act, 1872—Section 114, Illustration (a)—Presumptions—Dacoity with murder—Recoveries of jewelleries from different accused persons at their instance while in custody—Recovery of some of the weapons of assault from house of different accused persons—Whether sufficient to arrive at a conclu­sion that it was these accused per- sons who were perpetrators of murders?

       Held : From the prosecu­tion evidence, as already discussed it must be held that the prosecu­tion has been able to prove beyond reasonable doubt that the commis­sion of murders and the robbery formed part of one transaction which has been fully unfolded through the evidence of PW2 and in such situa­tion the recove­ries of the stolen properties from the house of some of the accused persons and at their instance and no explanation from those accused persons, on being questioned under Section 313 Cr.P.C. reasonably points to the guilt of those accused persons establishing the fact that it is they who committed the murders in the house and then committed the robbery and left the scene of occurrence. Whether a presumption under Section 114 Illustration (a) of the Evidence Act should be drawn in a given situation is a matter which depends on the evidence and the circumstances of the cases. The nature of the stolen articles, the nature of its identification by the owner, the place and the circumstances of its recovery, the intervening period between the date of occurrence and the date of recovery, the explanation of the persons concerned from whom the recovery is made are all factors which are to be taken into consideration in arriving at a decision. (Para 19)

       (vi) Indian Penal Code, 1860—Sections 302, 449, 326/34 and 120B—Convic­tion and sentence under—Appeal—Dacoity with murders—Eye witnesses being PW2, PW3, PW4 and PW5—Recovery of stolen articles belonging to PW4 from different accused persons—Identi­fi­cation of those articles by PW4—Certain incriminating materials recovered on basis of information given by accused while in custody—Evidence of eye witnesses corroborated—Prosecution evi­dence established that on relevant date of occurrence at mid night commission of murders and robbery formed part of one transaction—Pistol used for shooting driver and injured PW5 was the pistol belonging to appellant D—Empty cartridges recov­ered from house of D corroborate this conclusion—Prosecution case against appellant D under Section 302 proved beyond reasonable doubt—Award of death sentence set aside—Sentence of imprisonment for life.

       Held : From the prosecution ­evidence it is apparent that there was no premeditated plan to kill any person and the main objective was to commit robbery. In course of the incident as stated by PW2 when the two old ladies got up and rushed towards culprits one of them strangulated them one after the other. The post mortem report also indicated that the death of the two ladies are on account of strangulation.­ The learned Sessions Judge awarded death sentence to accused Devendran on the ground that as soon as the driver Nagarajan entered into the house said Devendran shot the gun which hit Nagarajan and he died. This itself cannot be held to be sufficient to hold that it is an act of a depraved mind. The number of persons died in the incident is not the determinative­ factor for deciding whether the extreme penalty of death could be awarded or not. On the evidence of PW2 as well as the evidence of PW5 it is difficult to hold that the death of the person were either diaboli­cal, ghastly or grue­some. (Para 20)

       (vii) Indian Penal Code, 1860— Section 302—Evidence Act, 1872—Section 114—Prosecution case of dacoity with murder—PW2 indicated that there were four persons who committed the offence in their house—PW2 has not been able to identify culprits—Recoveries of some of the jewel­leries from two accused after two months of occurrence—It will be unsafe to convict these accused in charge of murder—Their convic­tions under Section 302 set aside—They are convic­ted under Section 411 IPC. (Para 19)

       Sentence—Indian Penal Code, 1860—Section 302—Number of persons died in the incident is not determinative factor for deciding penalty of death. (Para 20)