The failure of the District Magistrate to record reasons for granting pardon during the investigation stage rendered the pardon order illegal, leading to the quashing of the commitment order based on the pardoned witness's testimony.

1. These two criminal miscellaneous petitions arise out of one commitment order dated the 22.11.1972, passed by Shri R.P. Srivastava, Special Munsif - Magistrate. Patna. Both these petitions were heard together, and therefore, this Judgement will govern both these cases.

2. By an order dated the, 22nd November, 1972, the committing Magistrate committed the petitioners in both these cases, that is, in Criminal Miscellaneous Nos. 5 and 26 of 1973, to stand their trial before the Sessions Court. Against that order, the petitioners have moved these two petitions for quashing the commitment order under Sec. 561A of the Code of Criminal Procedure (hereinafter referred to as the Code).

3. Shri A.K. Sen, learned Counsel for the petitioners, challenged the validity of the pardon granted to Madhavanand by an order dated the 4th May, 1972, by the District Magistrate Patna. .on these grounds :

(i). That under the proviso to Sec.337(1) of the Code, the District Magistrate has no jurisdiction to grant pardon during investigation.

(ii). That the order granting pardon is illegal, because the District Magistrate did not record any reason while granting the pardon.

In this connection, the learned Counsel for the petitioners, cited a decision of the Supreme Court in the State of U.P. V/s. Kailash Nath Agarwal (1973) 1 SCC 751 : (1973 Cri LJ 1196). The Supreme Court in that case held at Paragraph 12 as follows :

"Similarly, where the offence is under investigation, it is only a Magistrate having jurisdiction in a place where the offence might be enquired into or tried, can exercise the power. Even such a Magistrate can exercise that power only if the sanction of the District Magistrate has been obtained. While there is a restriction on the powers of the Magistrate of the First Class, no such restriction is to be found in the proviso on the powers of the District Magistrate either at the stage of investigation or inquiry into or trial of the offence."

It is, therefore, clear from the decision that the District Magistrate has the authority to grant pardon even at the stage of investigation. Shri Deobrata Mookherjee, learned Counsel for the State, contends that the District Magistrate has the authority to grant pardon during investigation. In my opinion, the contention of Mr. Mookherjee is correct.

4. The other contention of the learned Counsel for the petitioners is that the impugned order of the District Magistrate is illegal, because he failed to record his reasons while granting pardon. In the above mentioned case, the Supreme Court held that Sub-Section (1A) of Sec.337 of the Code makes it obligatory on the Magistrate tendering pardon to record his reasons for so doing. In my opinion, it is imperative on the part of the Magistrate granting pardon to record the reasons for so doing. If the reasons are not recorded the order of the Magistrate will not be a speaking order. If it is not a speaking order, it will be difficult for the revising Court to revise the order, in the absence of the reasons. In my opinion, Sub-Section (1A) of Sec.337 is a mandatory provision. If the Magistrate granting pardon does not assign any reason, the whole order of the Magistrate can be quashed on this ground alone. If the validity of the pardon is challenged at a very early stage, it is the duty of the Court to get the illegality cured. In this connection, the decision of the Supreme Court in H.N. Rishbud V/s. State of Delhi 1955 (1) SCR 1150 at p. 1164 : (1955 Cri LJ 526) is relevant. In that decision, the Supreme Court held as follows at p. 1164 :

"When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Sec. 537 of the Code of Criminal Procedure of making o