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2011 (8) Supreme 323
SUPREME COURT OF INDIA
Asok Kumar Ganguly and Gyan Sudha Misra, JJ.
Bangaru Laxman — Appellant(s)
versus
State (through CBI) & another — Respondent(s)
Criminal Appeal Nos.2164-2165 of 2011
(Arising out of SLP (Crl.) Nos.3834-35/2011)
Decided on : 22-11-2011
Code of Criminal Procedure ,1973- Sections 306 and 307 - Prevention of Corruption Act, 1988- Section 5(2) - Order passed by Special Judge granting pardon to respondent No. 2- on the condition that said respondent shall make full disclosure of the facts and circumstances relating to the offence committed by him in conspiracy with appellant and one another –Challenge thereagainst-On a harmonious reading of Section 5(2) of the P.C. Act with provisions of Section 306, and Section 26 of the P.C. Act, held that Special Judge under the P.C. Act, while trying offences, has dual power of Session Judge as well as that of a Magistrate- Such a Special Judge conducts proceedings under the court both prior to the filing of charge sheet as well as after filing of charge sheet, for holding the trial- Power of granting pardon, prior to filing of charge sheet, is within domain of judicial discretion of Special Judge before whom such a prayer is made, as in the instant case by the prosecution- Appeals dismissed (Paras 42 to 44)
Code of Criminal Procedure ,1973- Sections 306 and 307 - Prevention of Corruption Act, 1988- Section 5(2) - Order passed by Special Judge granting pardon to respondent No. 2- on the condition that said respondent shall make full disclosure of the facts and circumstances relating to the offence committed by him in conspiracy with appellant and one another –Challenge thereagainst-Power of granting pardon, prior to filing of charge sheet, is within domain of judicial discretion of Special Judge- Any other conclusion would be detrimental to administration of justice, in as much as, the power to grant pardon is contemplated in situations where serious offence is alleged to have been committed by several persons and with the aid of the evidence of the person, who had been granted pardon, offence committed may be proved- The basis of exercise of this power is not to judge the extent of culpability of the persons to whom the pardon is tendered- The main purpose is to prevent failure of justice by allowing the offender to escape from a lack of evidence- No merit in the contention urged on behalf of Appellant-Appeals dismissed (Paras 45 to 47)
Facts of the Case :
A.An Order was passed by Special Judge herein in the instant case granting pardon to respondent No. 2- on the condition that said respondent shall make full disclosure of the facts and circumstances relating to the offence committed by him in conspiracy with appellant and one another.
B. Said order was challenged on plea that that pardon could not be granted by Special Court prior to filing of charge-sheet.
Findings of the Court :
A-Under Section 5(2) of the P.C. Act the power of Special Judge to grant pardon is an unfettered power subject to stipulation made in the Section itself. Such power can be exercised at any stage and there is no stipulation that power can be exercised by the Special Judge only at the stage of trial as urged by appellant.
B. On a harmonious reading of Section 5(2) of the P.C. Act with provisions of Section 306, and Section 26 of the P.C. Act, held that Special Judge under the P.C. Act, while trying offences, has dual power of Session Judge as well as that of a Magistrate. Such a Special Judge conducts proceedings under the court both prior to the filing of charge sheet as well as after filing of charge sheet, for holding the trial. Power of granting pardon, prior to filing of charge sheet, is within domain of judicial discretion of Special Judge before whom such a prayer is made, as in the instant case by the prosecution. Appeals were dismissed
JUDGMENT
Ganguly, J.
1. Leave granted.
2. The challenge in these appeals is to an order dated 17.7.2006 by which the learned Special Judge granted pardon to respondent No. 2-Shri T. Satyamurty on the condition that the said respondent shall make full disclosure of the facts and circumstances relating to the offence committed by him in conspiracy with the appellant and one Shri N. Umamaheshwar Raju.
3. The charge-sheet in this case was filed next day i.e. 18.7.2006 against the appellant and Shri N. Umamaheshwar Raju. The said order granting pardon was challenged before the High Court but the said challenge was turned down by the High Court by its order dated 30.8.2010. The main argument by the appellant in this case is that pardon could not be granted by the Special Court prior to the filing of the charge-sheet.
4. Certain facts which are relevant to decide this A controversy may be recorded.
5. On 21.4.2005 the confessional statement of the respondent no.2 was recorded under Section 164 Cr.P.C. The said confessional statement of respondent No.2 recorded his involvement and the involvement of the appellant in the incident. On considering the said statement, the prosecution formed an opinion that the evidence of PW-2 is of great value to the prosecution and thereafter on 3.7.2006 the prosecution moved an application before the Court of the Special Judge for grant of pardon to respondent No.2 so that respondent No.2 could be examined as an approver in the case against the appellant.
6. Thereafter, by an order dated 17.7.2006, pardon was granted by the Special Court.
7. Mr. Sunil Kumar, learned counsel for the appellant mainly assailed the order granting pardon, inter- alia, on the ground that the Special Court has no jurisdiction and authority to do so before the filing of the charge sheet.
8. Learned counsel has of course raised an ancillary grievance that at the stage of granting pardon the Court had already formed its opinion on the guilt or otherwise of the appellant rendering the trial a mere mockery. However, his main argument was focused on the jurisdiction of the Special Court to grant pardon prior to the filing of the charge sheet.
9. In support of his submission, the learned counsel referred to the provisions of Sections 306 and 307 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) and also referred to Section 5(2) of the Prevention of Corruption Act, 1988(hereinafter referred to as the ‘P.C.’ Act)
10. For proper appreciation of the questions involved in this case, those provisions are set out below:
“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, 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 dis-closure 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.
(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 witnes
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