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2002 Supreme(AP) 2
Andhra Pradesh High Court
Judges : T.CH.SURYA RAO
Konajeti Rajababu - Appellant
Versus
State OF A.P. - Respondent
Decided On : 01-02-02
Headnote:(i) Criminal Procedure Code, 1973 - Sections 306 and 307 - Tender of pardon - Respondent A3, amongst four accused, charge sheeted for offence under Sections 302/34 IPC - Case committed to Sessions Court by Magistrate - Al was alleged to have stabbed deceased after all the four accused had reached place of incident and A2 to A4 have beating to PW 1 who was case was pending trial, A3 moved application for grant of pardon after notice of application to Addl. Public Prosecutor and hearing conditional pardon granted by Sessions Court - Revision by A1 Wide power conferred upon Court to tender pardon to a particular accused with a view to obtaining evidence of such person - Court is expected to record its reasons - Only prerequisite is to obtain evidence from the person to whom pardon is to be granted - Though prosecution case was based on testimony of eye witness, in the facts and circumstances it could not be legitimately concluded that discretion had not been exercised in judicious manner - Impugned order called for no interference. (Paras 9 & 16)
(ii) Criminal Procedure Code, 1973 - Sections 306 and 307 - Tender of pardon - Whether such a request for tendering pardon should emanate from prosecution or it could be from accused also - Power shall be exercised only when prosecution joins in the request.
Held: From the foregoing discussions with reference to the relevant provisions in the Code and the law laid down by the Apex Court, it can be summarised thus:
(1) The power to grant pardon enjoined under Sections 306 and 307 of the Code is a substantive power and it rests on the judicial discretion of the court.
(2) The power of the court is not circumscribed by any condition except the one, namely, that the action must be with a view to obtaining.
(3) The court has to proceed with great caution and on sufficient grounds recognising the risk which the grant of pardon involved of allowing an offender to escape just punishment at the expense of the other accused.
(4) The secrecy of the crime and paucity of evidence, solely for the apprehension of the other offenders recovery of the incriminating objects and production of the evidence otherwise unobtainable might afford reasonable grounds for exercising the power.
(5) The disclosure of the person seeking pardon must be complete.
(6) While tendering pardon, the court should make an offer to the one least guilty among the several accused.
(7) The reasons for tendering pardon must be recorded and also about the factum of accepting of pardon by the concerned.
Ordinarily, it is for the prosecution to ask that a particular accused out of several may be tendered pardon. It is because the State may not desire that any accused be tendered pardon as it does not need approver's testimony, or it may not also like the tendering of pardon to a particular accused because he may be the brain. After all, the court shall not be oblivious of the fact that the power which it exercises is not on its own behalf but on behalf of the prosecuting agency. Therefore, the power shall be exercised only when the prosecution joins in the request. This does not, however, preclude the accused from directly applying the court. When the accused directly applies to the court, the court must first refer the request of the accused to the prosecuting agency and ask for a statement from the prosecution on the request of the accused. If the prosecution thinks that the tender of pardon will be in the interests of successfui prosecution of the other offenders whose conviction is not easy without Jhe approver's testimony, it would indubitably agree to the tender of pardon. The court should, therefore, embark upon such a procedure in the interests of justice. (Para 13 & 14)
(iii) Criminal Procedure Code, 1973 - Sections 397 and 401 Revision against order granting pardon under Sections 306 and 307 Cr. P.C. - Revision is maintainable. (Para 17)
Result: Revision dismissed.
( 1 ) THE revision petitioner assails the order dated 12-6-2000 passed by the learned III Additional District and Sessions Judge, Krishna at Vijayawada, in Crl. M. P. No. 286 of 2000 in S. C. No. 159 of 1999.
( 2 ) THE revision petitioner is A. 1 in the said case and has been facing trial for the charge under Section 302 of the Indian Penal Code. The first respondent herein laid the charge sheet against four accused before the III Metropolitan Magistrate, Vijayawda, for the offence punishable under Section 302 read with 34 of the Indian Penal Code. It is alleged, inter alia, in the charge sheet that on 13-7-1997 at 22. 30 hours when the deceased by name Naveenram along with Boena Sivarama-krishna alias Nani reached the house of the deceased on a scooter, A. 1 to A. 4 surrounded the deceased and the said Nani. A. 1 after having enquired with the said Nani as to who among them was Naveenram and on being informed by Nani that the deceased was the said person, took out a knife from the Scooter and stabbed the deceased above the stomach, when A. 2 all of a sudden caught hold of the deceased from behind, and A. 3 and A. 4 beat Nani (L. W. 4) with hands hereby caused the death of the deceased with common intention to kill him as he was teasing the daughter of A. 1, and thereby did commit the offence of murder punishable under Section 302 of the Indian Penal Code. The case against A. 1 to A. 4 was duly committed to the Sessions Court by the III Metropolitan Magistrate, Vijayawada, and the same was made over to III Additional District and Sessions Judge, Krishna at Vijayawada.
( 3 ) WHEN the case was pending trial, A. 3 in the case filed a petition under Section 307 read with 306 of Code of Criminal Procedure ( the Code for brevity) requesting the Court to tender pardon to him by promising to reveal and disclose the whole truth and give evidence on behalf of the prosecution in support of the charge framed against him and other accused in the crime. In that application Crl. M. P. No. 286 of 2000 notice was given to the Additional Public Prosecutor on behalf of the State and after having heard the Additional Public Prosecutor, the learned Judge allowed the petition by tendering a conditional pardon to him and A. 3 was directed ultimately to be discharged from the array of the accused and further directed to be shown as first witness for the prosecution. A. 1, the prime accused in the case, assails that order, as aforesaid.
( 4 ) SRI T. Bal Reddy, learned senior counsel appearing for the revision petitioner-A1, contends that no reasons whatsoever have been given by the learned Judge for tendering a conditional pardon and, therefore, the impugned order is not legal, proper and correct. The learned senior counsel further contends that the propriety of the impugned order shall be seen, particularly when there is an eye-witness on the side of the prosecution in having tendered a conditional pardon to A. 3 three years after the alleged crime.
( 5 ) SRI C. Padmanabha Reddy, learned senior counsel appearing for the second respondent herein A. 3 contends that the revision petition itself is not maintainable inasmuch as the impugned order is in the nature of an administrative order.
( 6 ) THE crime in this case was occurred on 13-7-1997 wherein one person was murdered and the other was beaten. In connection with the said crime, A. 3 was arrested on 22-7-1997. After completing the investigation, the Investigating officer laid the charge sheet on 15-10-1997. As can be seen from the facts, when the deceased and another person were coming on Scooter in front of the house of the deceased they were surrounded by A. 1 to A. 4. After having ascertained from the other person about the identity of the deceased, the deceased was done to death. Obviously, therefore, the second person is an eye-witnesses to the occurrence. His statement under Section 164 of the Code has been recorded by a competent Magistrate. At the stage of investigation, th
