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2010 Supreme(Guj) 376
2010 (3) GCD 2594 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice H.B. Antani
Rajkumar Sangaiah Pandiyan
Versus
State of Gujarat & Ors.
Special Criminal Application No. 1737 of 20101—Decided on 28/10/2010
Appearance :
Mr. Parthiv A. Bhatt, for the Applicant No. 1.
Public Prosecutor, for the Respondent No. 1.
Mr. Y.N. Ravani, for the Respondent No. 2.
None, for the Respondents No. 3 - 4.
Point in Issue :
Whether provision to grant pardon in Criminal Procedure Code is arbitrary.
Headnote:Head Note :
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 395 and 306 — Pardon — Constitutional validity of the provision — Contention is that provision is arbitrary as other co-accused are not required to be considered nor they have role to play — Court referred to it’s earlier decision in reference to Criminal Miscellaneous Application No. 10311/10 and observed that provisions is not arbitrary because co-accused have a right to cross-examine the accomplice witness and further while deciding application for pardon Magistrate is required to decide application maintaining the spirit of advancement of interest of justice.
Held :
Court may record that this Court for the reasons recorded in the above referred Judgement dated 07.10.2010 in Criminal Misc. Application No. 10311/10 at Para 56 had recorded the following conclusion:—
“(a) Section 306 of Cr.P.C., is clear in itself and in view of the various decisions of the Apex Court and also of the other High Courts, including the view expressed by us while interpreting Section 306 of Cr.P.C., there is no unguided or arbitrary power vested to the learned Magistrate but is rather for advancement of the interest of justice.
(b) The say of the other co-accused is not required to be considered, nor they has any role to play when the question is to be considered by the learned Magistrate for grant of pardon after hearing a person applies for pardon and the prosecution or the investigating machinery but all the co-accused will has a right to cross-examination to the accomplice witness if his statement is recorded before the learned Magistrate and will has further right of cross-examination if such evidence is thereafter used by the prosecution at the time of trial for supporting its case or otherwise at the appropriate stage.
(c) The learned Magistrate under Section 306 of Cr.P.C., is required to decide the application made by the A-12, keeping in view the observations made by us in the above referred Judgement and more particularly by maintaining the spirit of advancement of interest of justice and in accordance with law. [Para 7]
Law Laid Down :
Provision relating to pardon in Criminal Procedure Code is not arbitrary and unguided but are rather for advancement of interest of justice.
Jayant Patel, J.—As in both the matters common questions arise for consideration, they are being considered by this common order.
2. Petitioners of respective both the petitions are co-accused in the charge-sheet filed by CBI against various alleged offenders in connection with I-C.R. No. 5/05 dated 16.07.2007 of ATS Police Station, Ahmedabad and thereafter, was registered as separate complaint by CBI after the investigation was transferred under the orders of the Apex Court to CBI. The charge-sheet against the accused concerned including the petitioners herein is filed in Special Case No. 5/10 before the learned Additional Chief Judicial Magistrate, Special CBI Court No. 2, Ahmedabad (Rural). The petitioners of Special Criminal Application No. 1737/10 is the original accused No. 2 whereas petitioners of Special Criminal Application No. 1903/10 are original accused No. 1 and 5 (hereinafter referred to as “petitioners/co-accused” for the sake of convenience). It appears that the original accused No. 12 Shri N.K. Amin after filing of the charge-sheet before the learned Magistrate applied for pardon under Section 305 of the Cr.P.C. by showing a desire to disclose the whole of the circumstance within his knowledge. The original accused Nos. 1 and 5 resisted the said application under Section 306 of Cr.P.C. before the learned Magistrate by filing objections and at that stage, the reference was made by the learned Magistrate under Section 395 of Cr.P.C. to this Court on the aspects of constitutional validity of Section 306 of the Cr.P.C. vide order dated 26.08.2010. At that stage, the CBI, Respondent No. 2 herein, challenged the aforesaid order dated 26.08.2010 passed by the learned Magistrate for making reference under Section 395 of the Cr.P.C. to this Court. We may record that the reference made by the learned Magistrate was numbered as Criminal Reference No. 2/10. This Court vide its Judgement dated 07.10.2010 in a petition preferred by CBI challenging the aforesaid order of the learned Magistrate for making reference being Cr. Misc. Application No. 10311/10 after hearing both the sides had concluded at Para 56 and observed that the power under Section 306 of Cr.P.C. are not unguided or arbitrary and the say of the other co-accused are not required to be considered nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon, but the co-accused will have right to cross-examine the accomplice witness if his statement has been recorded and a further right to cross-examine in the event such statement is used as an evidence at the time of trial. It was also observed that the learned Magistrate is required to decide the application under Section 306 of the Cr.P.c by maintaining the spirit of advancement of interest of justice. It was also observed that the order by the learned Magistrate by making reference is by way of misdirection of exercise of the power and condition for making reference have not been satisfied
3. Ultimately, the order passed by the learned Magistrate was quashed and set aside in exercise of the power under Section 482 of the Cr.P.C. Consequently, thereafter by a separate order, Reference No. 2/10 also came to be disposed of.
4. In the meantime, it appears that Special Criminal Application No. 1737/10 is filed on 08.09.2010 and Special Criminal Application No. 1903/10 is filed on 27.09.2010 before this Court for challenging the constitutional validity of Section 306 of Cr.P.C. contending that the same is violative of Articles 14, 19, 20 and 21 of the Constitution of India by invoking the power of this Court under Article 226 of the Constitution.
5. We have heard Mr. S.B. Vakil with Ms. Archana Archarya and Mr. B.B. Naik with Mr. Parthiv Bhatt, Learned Counsels appearing for the respective petitioners. Mr. Y.N. Ravani, learned Special Counsel for CBI and Mr. K.P. Raval, learned APP for State of Gujarat have appeared upon the advance copy.
6. It was contend
