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2008 Supreme(Bom) 99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.B. Bhosale, J.
AL-SALEHA BEIG - Applicant.
vs.
STATE and others - Respondents.
Cri. Rev. Appln. No: 69 of 2007
Decided On: 24-1-2008.
Advocate Appeared:
For petitioner:S.D. Lotlikar, Senior Advocate with Ryan Menezes,
For State: Ms. W. Coutinho, Public Prosecutor
Headnote:Criminal Procedure Code, 1973 - Sections 306 and 307-Tender of pardon-To accomplice-"No objection" by prosecution-Mere stating "no objection" for tendering pardon not sufficient-Request made by accused for reasons stating as to why tender of pardon is necessary and that conviction of other accused not easy without approver’s testimony to be joined by prosecution.-Section 306, Cr PC confers power upon the Chief Judicial Magistrate or a Metropolitan Magistrate as well as the Magistrate of the First Class, at any stage of the investigation or the trial to tender pardon to any person with a view to obtaining the evidence of such person supposed to have directly or indirectly concerned in or privy to an offence to which this section applies on a condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence. Section 307 also confers similar powers upon the Court to which commitment of a case is made on the same condition. The expression on the same condition clearly refers to the conditions of tendering a pardon engrafted in sub-section (1) of Section 306.
The law in this regard is no longer res integra. The Supreme Court in A. Deivendram v. State of Tamil Nadu, AIR 1998 SC 2821, had an occasion to deal with the provisions contained in Sections 306 and 307, Cr PC. In paragraph 11 thereof. Their Lordships observed that under Section 307 when pardon is tendered after commitment of the proceedings by the Court to which the commitment has been made, the legislative mandate is that the pardon would be tendered on the same condition. The expression "on the same condition" obviously refers to the condition of tendering a pardon engrafted in sub-section (1) of Section 306, the said condition being the person concerned on making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Mere perusal of this provision shows that the paramount consideration for tendering pardon to an accomplice is the satisfaction of a Court that he will make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence to also the satisfaction of the prosecution that the conviction of the other accused is not easy without the approver’s testimony.
Criminal Procedure Code, 1973 - Sections 306, 307 and 401-Revision application-Directed against judgment and order rejecting petitioner’s application seeking pardon under Sections 306 and 307, Cr PC-Contented that trial Court unnecessarily entered into factual matrix-A cursory perusal of statement of petitioner-accused under Section 164, Cr PC indicates that trial Court not looked confessional statement of petitioner recorded under Section 164, Cr PC carefully- Extent of role of accused seeking pardon cannot be a consideration while exercising powers under Section 307 read with 306, Cr PC-Trial Judge not expected to consider possible weight of approver’s evidence-Prosecution not filed detailed affidavit justifying their no objection given in trial Court for tendering pardon- Impugned judgment quashed and set aside-Matter remanded to trial Court for considering petitioner’s application afresh.
2. Mr. Lotlikar seeks leave to delete respondent Nos. 2 to 5. Leave as sought is granted. Amendment to be carried out forthwith.
3. Rule. By consent, rule is heard forthwith.
4. This revision application is directed against the judgment and order dated 5-10-2007 rendered by the President, Children's Court for the State of Goa, Panaji in Special Case No. 28/2006 by which the application filed by the petitioner, who is accused No.5 in the case, seeking pardon under section 307 r/w. section 306 Criminal Procedure Code has been rejected.
5. It appears that two such applications, one filed by the applicant and the other filed by accused No.3 Shankar Tiwari, were considered and rejected by the, common judgment, impugned in this Revision. The only question raised by the petitioner in the instant revision is whether or not the learned Judge while dealing with the application filed by the petitioner, has followed the due procedure contemplated by sections 306 and 307, Criminal Procedure Code and has overlooked the judgments of the Supreme Court as also of this Court, interpreting these provisions and laying down the procedure, parameters and the limits ingrained for considering such application and whether the impugned judgment is sustainable in law. The accused No. 3 had independently challenged the impugned judgment in this Court, however, in view of the objection raised by the prosecution for tendering pardon to accused No. 3 and/or the fact that they did not join in the request made by accused No.3, his revision came to be dismissed.
6. My attention was drawn to the certain observations made in the impugned judgment to contend that the learned Judge has unnecessarily entered into the factual matrix and has taken on himself to consider the role played by the petitioner to hold that the record is not convincing enough to grant a tender of pardon to the accused and that the prosecution would not require crutches either of the petitioner or accused No.3, Tiwari to establish its case against the other accused. There is absolutely no discussion in the judgment as to whether or not the petitioner would make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. At one stage, the learned Judge records that a statement recorded under section 164 of the petitioner shows that he exculpate himself with titbits of information of his involvement and shifting major focus on the involvement of the other four accused persons, and then later it is observed that the statement of the petitioner under section 164 would not warrant the grant of tender of pardon to him looking to the role allegedly played by him with the other accused as a part of conspiracy, hatched to kidnap the victim Mandar for ransom and thereafter caused his death coupled with the destruction of the evidence.
7. The learned Judge in paragraph 30 of the impugned judgment has recorded that "a cursory perusal of the statement of the petitioner under section 164, Criminal Procedure Code, to which the learned Public Prosecutor and each of the defence Advocates have referred to, goes prima facie to pinpoint that accused No. 5 - Beig (the petitioner) is seeking to keep himself aloof from the purported acts of hatching a conspiracy and the related acts of making a demand for ransom, and finally snuffing out the life of the victim, Mandar." The expression "cursory perusal" itself indicates that the learned Judge did not look into the confessional statement of the petitioner recorded under section 164 Criminal Procedure Code carefully and from the angle so as to find out whether he would make a full and true disclosure as contemplated in sub-section (1) of section 306, Criminal Procedure Code. Similarly, from the contents of the judgment it appears to me that the learned Judge has taken on herself the task of determi
