JUDGMENT

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the impugned judgment and order dated 20.8.2007 passed by the High Court of Delhi at New Delhi in Crl. Misc. (Main) No. 3741 of 2001, by which it has set aside the order of the Special Judge dated 7.9.2001 granting pardon to respondent no. 2, Shri Abhishek Verma under Section 306 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) and making him an approver in the case wherein respondent no.1, Ashok Kumar Aggarwal is also an accused; and remanded the same to decide the application afresh.

2. Facts and circumstances giving rise to this appeal are that:

A. A case was registered by the appellant, CBI on 29.1.1999 on the written complaint of one Abhijit Chakraborty, Additional Director, Enforcement Directorate (hereinafter referred to as ED), Ministry of Finance, Government of India. The complainant alleged that the Delhi Zonal office of the Enforcement Directorate conducted a search at the office i.e. three shops at Hotel Maurya Sheraton, New Delhi and residential premise i.e. G-51, Lajpat Nagar III, New Delhi of one Subhash Chandra Barjatya on 1.1.1998. Respondent no.1 was the Deputy Director in-charge of Delhi Zone at the relevant time.

B. During the searches, the officers of the ED seized a fax message (debit advice) from one of the shops of said Shri S.C. Barjatya, purportedly sent from Swiss Bank Corporation, Zurich, Switzerland. This fax message reflected a debit of US $ 150,000/- from the account of Royalle Foundation, Zurich, Switzerland in favour of one S.K. Kapoor, holder of account no. 022-9-608080, Hong Kong & Shanghai Banking Corporation (HSBC), as per the advice of the customer i.e. Royalle Foundation.

C. Shri S.C. Barjatya filed a complaint dated 4.1.1998 with Director Enforcement alleging that the fax message from Swiss Bank Corporation was a forged document and had been planted in his premises during the course of the search undertaken on 1.1.1998 in order to frame him. The complainant and his employee had been illegally detained on the said night and were threatened and manhandled.

D. The ED conducted an enquiry and Shri S.C. Barjatya was arrested on 28.1.1998.. In March 1998, Shri Barjatya submitted a letter to ED allegedly procured by one Shri M. Kapoor, Chartered Accountant of Shri S.C. Barjatya from Eric Huggenberger, Attorney of Swiss Bank Corporation, Zurich, Switzerland, which was later on authenticated by the Bank and the Indian Embassy in Berne, confirming that the above said fax message was a forged document and was never issued by the Swiss Bank Corporation, Zurich, Switzerland.

E. In view of the above facts, a prima facie view was taken that a criminal conspiracy had been hatched by the officers of the Delhi Zonal office to create a forged document and to use it as a genuine document to create false evidence and to implicate S.C. Barjatya.

F. Respondent no.2 was arrested in November, 1999 and his statement was recorded under Section 161 Cr.P.C. before the CBI disclosing that he played an active role in forging the said fax on the instructions of respondent no.1. On 2.12.1999, confessional statement of the respondent no.2 was recorded in the court of Metropolitan Magistrate under Section 164 Cr.P.C., wherein he reiterated his statement as made before the CBI. During this period, respondent no.1 remained absconding and could be apprehended only on 23.12.1999 from a hotel at Saharanpur wherein he was staying under a fictitious name.

G. Respondent no.2 filed an application under Section 306 Cr.P.C. for grant of pardon and becoming an approver on 18.7.2000. The Court entertained the said application and issued notices on 3.8.2000. When the said application came up for hearing on 1.9.2000, the Presiding Officer was on leave. Thus, the matter was adjourned for 21.9.2000.

H. The CBI filed a reply to the said application on 1.9.2000 stating that it had no objection if respondent no.2 was tendered pardon and made an approv