(July 10, 2001) 2001 (TLS)125322

2001-DLT-93-79 :: 2001-AD (Del)-6-369

ASHOK KUMAR AGGARWAL Vs. CENTRAL BUREAU OF INVESTIGATION

R. C. CHOPRA

( 1 ) THIS Criminal Revision under Sections 397/401read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code" only) challenges an order dated 3/5/2001 passed by learned Special judge, Delhi by which application of the petitioner, for giving him hearing before considering the request of a co-accused for pardon, was rejected.

( 2 ) I have heard learned counsel for the petitioner and learned counsel for the respondent. The petitioner is an accused in a case under section 120-B read with Sections 193, 342, 467, 471 Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of the prevention of Corruption Act, 1988 (hereinafter referred to as "the Act" only), which is being investigated by CBI. Abhishek Verma, co-accused of the petitioner, has applied for grant of pardon under section 5 (2) of the Act. The petitioner moved an application before learned Special Judge making several allegations against Abhishek Verma and pleading that he was not a reliable person/witness and as such, no purpose would be served by tendering him pardon. It was also stated that the. Investigating Agency was merely trying to save Abhishek Verma and there was sufficient material/evidence for proving the case against the petitioner. The prayer of the petitioner was that the Court should afford him a hearing at the time of considering the question of grant of pardon to accused Abhishek Verma. The application was dismissed by learned Special Judge vide impugned orders holding that the Court was not bound to hear the petitioner in the matter. It was also held that nobody could cross-examine an approver when his statement was being recorded prior to committal proceedings.

( 3 ) LEARNED counsel for the petitioner has vehemently argued that learned Special Judge was wrong in making observations about the cross-examination of the approver in as much as the petitioner had never made a prayer that he be allowed to cross-examine the approver. It is stated that the prayer was for a hearing only. It is also submitted that a plain reading of Section 5 (2) of the Act reveals that the special Judge, while recording statement of an accused and tendering him pardon, is deemed to be acting under section 307 of the. Code, which relates to the tender of pardon by the Sessions Court after commitment of a case. It is also contended that a Special Judge under the Act has no powers to record statement of a co-accused or tender him pardon before a challan is filed. It is submitted/that recording of the statement of the approver and tender of pardon under Section 5 (2) of the Act are judicial proceedings and as such, a co-accused has a right to be heard.

( 4 ) LEARNED counsel for the respondent, on the other hand, submits that Section 5 (2) of the Act provides for recording of the statement of an approver and tender of pardon at the stage of investigation as well as at the stage of trial after filing of the challan and this provision does not limit the powers of the Special Judge to the stage of trial only, which commences after filing of challan. It is submitted that Section 5 (2) of the Act, for the purposes of sub-sections (1) to (5) of Section 308 of the Code only deals with tender of pardon under Section 307 of the code. He submits that recording of statement of an approver and tender of pardon after filing of the challan may be a judicial proceeding giving right to a co-accused to be heard, but recording of the statement and tender of pardon at the stage of investigations does not vest a co-accused with any such right and the matter remains between the Court and the accused only.

( 5 ) IN order to properly appreciate the rival contentions made by learned counsel for the parties, it would be appropriate to consider the relevant provisions, which read as under:- section 306 of Code o