Judgment

VAIDIALINGAM, J.: -The question that arises for consideration in this appeal by the State of U. P. on certificate is : -

"Whether a District Magistrate is competent under Section 337 (1) of the Code of Criminal Procedure to grant pardon to an accused person when a First Class Magistrate, before whom the inquiry proceedings had been pending, had rejected such a request."

2. Before we proceed to state the facts it has to be mentioned that it has been brought to our notice that Sarwan Lal, the 4th respondent, died after the appeal was filed in this Court by the State. In consequence the appeal has abated against him. However, in the course of the judgment we will have to refer to him also when we state the case of the prosecution.

3. The prosecution case against the accused was as follows :-

The first respondent Kailash Nath, along with Sarwan Lal, Moti Chandra and Smt. Shanti Devi respondents 4 to 6 respectively, were the Directors of M/s. M. K. Brothers (P.) Ltd., Kanpur and were doing business in cotton in Kanpur. In the course of their business they used to purchase cotton from out stations and sell them to the textile mills at Kanpur. The second respondent, Kesardeo Dudhia, was an employee of M/s. M. K. Brothers (P.) Ltd. and used to look after the work of taking delivery of cotton bales from the Kanpur railway station. The third respondent, Devi Prasad Agarwal was a representative of J. K. Cotton Mills, Kanpur. In 1958 the financial position of M/s. M. K, Brothers (P.) Ltd. became very precarious and in consequence they committed considerable delay in clearing the consignments of cotton from the station premises and this resulted in their being liable for heavy arrears of demurrage and wharfage.

4. As the textitle industry itself was facing a crisis in 1958, the Government with a view to give some assistance, granted several concessions. One such was that the consignees, who had their own railway sidings were granted remission in respect of demurrage end wharfage payable to the railway authorities. This enabled the consignees to take delivery of goods according to their convenience. In the said Year, as M/s. M. K. Brothers (P.) Ltd. had received a large number of consignments of cotton bales they evolved a scheme to avail themselves of the benefit granted to the textile industry by the Government. For this purpose, they hatched a plan by which they misrepresented that the consignments of cotton bales received at Kanpur railway station though in their name, actually belonged to M/s, J. K. Cotton Mills, Kanpur. The second respondent an employee of M/s, M. K. Brothers, the third respondent, an employee of J. K. Cotton Mills and respondents 1 and 4 to 6, the Director of M/s. M. K. Brothers, entered into a conspiracy in furtherance of their object and as a result thereof they submitted false applications to the railway authorities on behalf of J. K. Cotton Mills for remission on the representation that the goods had been consigned to J. K. Cotton Mills. In furtherance of the object of this conspiracy, they also made false endorsements on the railway receipts for transfer of the bales. As a result of the conspiracy they defrauded the railway administration during the year 1958-59 of very large amounts. Accordingly a chargesheet was filed against respondents 1 to 6 under Sections 120 (b), 420, 467, 468 and 471 of the Indian Penal Code.

5. The inquiry proceedings were started in the Court of the first class Magistrate Kanpur, as the case was triable as a sessions case. On June 30, 1962 the second respondent, Kesardeo Budhia, made a confessional statement. Similarly, Devi Prasad Agarwal, the third respondent gave a confessional statement on July 12, 1963. Both respondents 2 and 3 made applications on December 17, 1964 under Section 337 of the Criminal Procedure Code before the First Class Magistrate praying for grant of pardon. The said applications were supported by the prosecution. But the other accused opposed the grant of par