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IN THE HIGH COURT OF DELHI AT NEW DELHI
C. Hari Shankar, J.
Directorate Of Enforcement - Appellant
Versus
Rajiv Saxena - Respondent
Criminal Miscellaneous Case No. 1477 of 2020; Criminal Miscellaneous Appeal No. 6491 of 2020, 7117 of 2020
Decided On : 08-06-2020
The Court held that the Public Prosecutor's certificate under Section 308(1) of the CrPC must be based on the approver's statement recorded under Section 306(4) or any other evidence adduced by the approver during the trial. The Court further held that the approver's non-cooperation during the investigation is not a ground for revoking the pardon.
Fact of the Case:
The petitioner, Directorate of Enforcement (ED), sought to quash an order passed by the learned Special Judge, CBI (hereinafter referred to as "the learned Special Judge"), whereby the learned Special Judge had dismissed the petitioner's application seeking revocation of the pardon granted to the respondent, Rajiv Saxena, under Section 306 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the CrPC"). The respondent was granted pardon by the learned Special Judge on 25th March, 2019, in a case related to money laundering.
Finding of the Court:
The Court held that the Public Prosecutor's certificate under Section 308(1) of the CrPC must be based on the approver's statement recorded under Section 306(4) or any other evidence adduced by the approver during the trial. The Court further held that the approver's non-cooperation during the investigation is not a ground for revoking the pardon.
Issues: 1. Whether the Public Prosecutor's certificate under Section 308(1) of the CrPC can be issued before the approver's statement is recorded under Section 306(4)? 2. Whether the approver's non-cooperation during the investigation is a ground for revoking the pardon?
Ratio Decidendi: 1. The Court held that the Public Prosecutor's certificate under Section 308(1) of the CrPC must be based on the approver's statement recorded under Section 306(4) or any other evidence adduced by the approver during the trial. The Court reasoned that the purpose of recording the approver's statement under Section 306(4) is to ascertain whether the approver is complying with the conditions of the pardon. The Court further reasoned that the Public Prosecutor's certificate under Section 308(1) is required to be based on the approver's statement recorded under Section 306(4) or any other evidence adduced by the approver during the trial, as the certificate is intended to certify that the approver has not complied with the conditions of the pardon. 2. The Court held that the approver's non-cooperation during the investigation is not a ground for revoking the pardon. The Court reasoned that the condition of pardon is candour before the court, and not candour before the investigating officer. The Court further reasoned that non-cooperation with the investigative process is, therefore, irrelevant insofar as Section 308(1) is concerned.
Final Decision: The Court dismissed the petition filed by the petitioner, Directorate of Enforcement (ED), seeking to quash the order passed by the learned Special Judge, CBI, whereby the learned Special Judge had dismissed the petitioner's application seeking revocation of the pardon granted to the respondent, Rajiv Saxena, under Section 306 of the CrPC.
JUDGMENT
C. Hari Shankar, J. - An interesting issue, involving the interplay between Section 306, and Section 308, of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr PC", or "the 1973 Cr PC"), arises for consideration in the present case.
Facts, and the impugned Order
2. The Central Bureau of Investigation (CBI) registered RC No. 217-2013A-0003, against the respondent, on 12th March, 2013, alleging commission of offences, by him, punishable under Section 420, read with Section 120B of the Indian Penal Code, 1860 (IPC) and Sections 7, 8, 9, 12 and 13(1)(d), read with Section 13(2) of the Prevention of Corruption Act, 1988. Inasmuch as the allegations, against the respondent (and others arraigned with him) indicated commission of offences under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "the PMLA"), ECIR No. 15/DLZO/2014 was also registered against, inter alia, the respondent, on 3rd July, 2014, by the Directorate of Enforcement (the petitioner herein).
3. Given the limited controversy before me, which is purely legal in nature and turns on the interpretation of Sections 306 and 308 of the Cr PC, it is not necessary to allude, to the allegations against the respondent, in any detail. Suffice it to state that an application was filed, by the respondent, under Section 306, Cr PC, for grant of pardon. The said application was allowed, by the learned Special Judge, CBI (hereinafter referred to as "the learned Special Judge"), vide a detailed order, dated 25th March, 2019, the operative para 21, whereof, reads thus:
"In view of my aforesaid discussion, I thus allow the application moved by accused/applicant Rajiv Saxena seeking pardon and to make him an approver subject to his making full and true disclosure of whole of the circumstances as are within his knowledge relating to the offence and to every other person concerned whether as an abettor or principal in the commission of offences being tried over here."
4. Sections 306 and 308 of the Cr PC read as under:
"306. Tender of pardon to accomplice.
(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
(2) This section applies to -
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record -
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (1) -
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, -
(a) commit it for trial -
(i) to the Court of Session if the offence is triable exclusively by that
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