IMPORTANT POINT
Irregularity in Magistrate exercising power to grant pardon even after appointment of Special Judge is curable.

JUDGMENT

K.S. Radhakrishnan, J. –

1. We are, in this appeal, concerned with the question whether the pardon granted by the Metropolitan Magistrate, Tis Hazari, Delhi, under Section 306 Cr.P.C. to the second Respondent, against whom R.C. No.15(A) 96 DLI dated 29.2.1996 under Section 7 of the Prevention of Corruption Act, 1988 was registered by the Central Bureau of Investigation, is legally sustainable.

2. The Central Bureau of Investigation (CBI) registered R.C. No.15(A) 96 DLI dated 29.2.1996 under Section 7 of the Prevention of Corruption Act, 1988 (for short "PC Act") on receipt of a written complaint on 29.2.1996 from Gulshan Sikri, proprietor of M/s Filtrex India, Nangal Raya, New Delhi, against P.C. Mishra, the then Assistant Commissioner of Sales Tax (Appeals), Appellant herein, for demanding Rs.4,000/- as bribe for settling the appeal filed against the order of Sales Tax Officer.

3. CBI, on 1.3.1996, laid a trap and the accused, PC Mishra, and his Reader Ravi Bhatt, second Respondent herein, were caught red-handed while demanding and accepting the bribe from the complainant. Both the accused persons were arrested by the CBI on 1.3.1996 and, during the course of investigation, an application was filed by the co-accused Ravi Bhatt before the Special Judge, CBI, for recording his confessional statement under Section 164 Cr.P.C., which was marked by Special Judge to the Chief Metropolitan Magistrate, who assigned the same to the Metropolitan Magistrate and the statement of second Respondent under Section 164 Cr.P.C. was recorded on 7.8.1996.

During the course of investigation, the witnesses had been examined and records scrutinized and it transpired that the co-accused Ravi Bhatt had accepted the bribe money for and on behalf of the Appellant. The CBI, on investigation, noticed that the second Respondent was not a leading accused in the case and it was considered necessary to take him as an approver to prove the various missing links in the chain of circumstantial evidence, which was otherwise not available to the investigating agency. Consequently, the CBI on 24.10.1996 filed an application under Section 306 Cr.P.C. before the Special Judge, Tis Hazari, Delhi for grant of pardon to the second Respondent, Ravi Bhatt. The Special Judge marked that application to the learned Chief Metropolitan Magistrate for the said purpose, who, in turn, marked the same to the Metropolitan Magistrate.

4. The Metropolitan Magistrate examined the application of the CBI and passed an order dated 2.11.1996, in exercise of powers conferred under Section 306 Cr.P.C., holding that it was a fit case where pardon should be granted to the second accused to enable the prosecution to unveil all circumstances of the case and to unearth the truth, stating the following reasons : "Accused Sh. Ravi Bhatt is a privy to the offence. He is not the principal/leading accused in this case. It is not mentioned in the written complaint of the complainant that accused Sh. Ravi Bhatt demanded Rs.4000/- from him.

The role played by him, however, is minimal. Considering that the matter relates to corruption in the Government Department and no direct independent evidence is available, I think it appropriate to obtain evidence of the accused, Sh. Ravi Bhatt in order to prove the various missing links in the chain of the circumstantial evidence which are not otherwise available to the investigating agency. The offence mentioned in the FIR is triable exclusively by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952)."

5. The above mentioned order was not challenged and has attained finality. Later, charges were framed under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act against the Appellant vide order dated 8.2.2000 after getting sanction. Trial proceeded in the Court of Special Judge and evidence was concluded as against the Appellant. Second Respondent, Ravi Bhatt, was examined as PW9 by the prosecution and was also c