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2011 (3) GCD 111 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice H.B. Antani
Central Bureau of Investigation
Versus
N.K. Amin & Ors.
Criminal Misc. Application No. 10311 of 2010—Decided on 07/10/2010
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 164(1)(2)(5), 306, 395 and 482 — Constitution of India, 1950 — Articles 14, 19, 19(1)(d), 20(3) and 21 — Tender of Pardon — Provision of — Securing evidence of accomplish having privy to offence — And also non-requirement of consideration of other accused involved — Constitution validity and validity of impugned order of reference by Magistrate — Court held order of reference not sustainable — Provision is clear and does not give unguided or arbitrary power to Magistrate — Provision is rather for advancement of interest of justice hence constitutionally valid.
Held :
It appears to us that it is essentially a matter between the accused, who has applied for pardon under Section 306 of CrPC, and the prosecution or the investigating machinery and the Court i.e. the learned Magistrate. The other co-accused will have no say in the matter and the reason being if the pardon is granted, and the statement of the accomplice witness is recorded, then the other co-accused will have a right of cross-examination to the person making the statement. Further, after the statement is so recorded including the cross-examination and the prosecution relies upon the said statement by way of an evidence against the other co-accused at the time of arrest or remand of any person or other co-accused or at the time when co-accused are charged or the said person is examined as accomplice witness in the trial before the Court of Sessions, the other co-accused may have say and will have right of cross-examination to0 for such accomplice witness by way of defence. Since all other co-accused will have full right of defence including that of cross-examination of the accomplice witness if the prosecution intends to rely upon the evidence of such witness, the other accused will have no say in the matter till then and if they have no say in the matter, the question of hearing the other co-accused at the stage when the learned Magistrate has to exercise the power under Section 306 of CrPC, would not arise at all. [Para 19]
(a) Section 306 of CrPC, 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 Court while interpreting Section 306 of CrPC, there is no unguided or arbitrary power vested to the learned Magistrate but are rather for advancement of the interest of justice.
(b) The say of the other co-accused is 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 after hearing a person applies for pardon and the prosecution or the investigating machinery but all the co-accused will have a right to cross-examination to the accomplice witness if his statement is recorded before the learned Magistrate and will have 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 CrPC, is required to decide the application made by the A-12, keeping in view the observations made by Court in the above referred judgement and more particularly by maintaining the spirit of advancement of interest of justice and in accordance with law.
(d) The impugned order for making reference by the learned Magistrate is by way misdirection of the exercise of power and condition for making reference have not been satisfied. [Para 55]
When the provisions of Section 306 of CrPC, read with the above referred case law and observations, provide for inbuilt mechanism, Court find that it would be a fit case to exercise the power under Section 482 of CrPC, by quashing and setting aside the order passed by the learned Magistrate dated 28.10.2010 below Exh. 53, which is impugned in the present petition. It will now be for the learned Magistrate to further consider the application under Section 306 of CrPC, in light of the observations made by us herein above and in accordance with law and to pass order. [Para 56]
Law Laid Down :
Provision to tender Pardon to accomplish is no unguided or arbitrary power vested in Magistrate but are rather for advancement of interest of justice.
Case Law Analysis :
Ranadhir Basu vs. State of W.B., 2000 (3) SCC 161 [Para 20];; M. M. Kochar vs. The State, AIR 1969 Del 21 [Para 21] = MANU/DE/0158/1968 [Para 22.1];; Senthamarai vs. S. Krishnaraj & Anr., 2002 CrLJ 2375 (Mad) [Para 22];; Faqir Singh vs. Emperor, MANU/PR/0053/1938 [Para 22.1];; Commander Pascal Fernandes Lt. vs. State of Maharashtra and Ors., AIR 1968 SC 594 [Para 23];; Laxmipat Choraria and Others vs. State of Maharashtra, AIR 1968 SC 938 [Para 29];; Jasbir Singh vs. Vipin Kumar Jaggi, AIR 2001 SC 2734 [Para 32];; Commander Pascal Fernandes Lt. vs. State of Maharashtra and Ors., AIR 1968 SC 594 [Para 32];; Sitaram Sao @ Mungeri vs. State of Jharkhand, AIR 2008 SC 391 [Para 33];; Bhawani Singh vs. The State, AIR 1956 Bhopal 4 (Vo. 43) [Para 34].—Relied on
Prabhat Ranian Sarkar and Ors. vs. The State of Bihar, 1974 CrLJ 957 [Para 25];; State of U.P. vs. Kailash Nath Agarwal, AIR 1973 SC 2210 [Para 26];; T.P. Mohideen vs. The State of Madras and Anr., AIR 1965 Madras 461 [Para 34.1].—Distinguished
Jayant Patel, J.—The present petition under Section 482 of CrPC, preferred by CBI, is directed against the order dated 26.08.2010 passed by the learned Additional Chief Judicial Magistrate, Special Court for CBI No. 2 (hereinafter referred to as ‘the learned Magistrate’ for the sake of convenience) in Application below Exh. 53 preferred by the Respondent No. 3 and 4 herein (original Accused No. 1 and 5 respectively), whereby the learned Magistrate has made a reference to this Court under Section 395 of Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C./Code’ for the sake of convenience) to decide the question as to whether the application made by Shri N.K. Amin under Section 306 is constitutionally legal or not.
2. The short facts relevant for the purpose of the present petition are as under:—
2.1 In connection with the encounter of Sohrabuddin Sheikh and the elimination of his wife Kauserbi, which was being investigated by the State Police (vide FIR-CR No. 5/2005), the Apex Court entrusted the investigation to CBI, which took over the investigation on 1.02.2010 and registered the case being R.C. No. 4(S)/2010-MUM as per the decision of the Apex Court reported at 2010 (2) SCC, 200. It appears that thereafter CBI investigated into the matter and filed Charge-sheet on 23.7.2010, but as per CBI it is a preliminary charge-sheet and the further investigation is still in progress. As per CBI, the Apex Court has directed to complete the investigation within a period of three months.
2.2 It appears that on 26.07.2010 Shri N.K. Amin – original Accused No. 12 preferred an application Exh. 8 under Section 306 of CrPC, for grant of pardon and to be considered as an approver and he declared in the application that he is ready and willing to give statement under Section 164(2) of CrPC, so as to become an approver in the above case and desired to disclose true and material facts pertaining to the offence. It appears that on the very day i.e. 27.7.2010 the application Exh. 9 was also submitted by A-12 praying before the learned Magistrate that since he is in the same Central Jail together with the other accused, he may be assaulted by the other accused or the attempt shall be made to kill him and, therefore, he may be transferred at other place in the judicial custody. On 27.07.2010, the learned Special Public Prosecutor for CBI by submitting an application Exh. 14 declared before the Court that there is danger of life of A-12 in the judicial custody and, therefore, the Court may pass order as deem fit, so that the accused is not harmed and as the accused is in judicial custody, the Court has power to shift him to other jail. On 10.8.2010, the learned Special Public Prosecutor as well as Dy. Special Prosecutor, CBI SIT in reply to the application of A-12 under Section 306 of CrPC, declared as under:—
“That in view of the application filed by Mr. N.K. Amin – accused No. 12 for grant of pardon, it is respectfully submitted that the application be allowed on the strict condition of his making 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 commission of offence.”
Hence, on the above condition, the application be allowed.
3. On the very day, the application was also made by A-12 to the learned Magistrate stating that he has submitted the application Exh. 8 for tendering pardon and as the Applicant wants to make full and true disclosure relative to the offence under Section 164(1) read with Sub-section (5) in support of the application under Section 306 of CrPC, for tendering pardon to him, he be permitted to give statement under Section 164(2) of CrPC, in connection with the offence. The learned Special P.P. For CBI made endorsement as under:—
“It is admitted that the statement of the accused be recorded in accordance with the power under Section 164 of Cr.P.C.”
4. It appears that thereafter A-1 (Shri D.G.
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