An accused can file an application for tender of pardon under Section 306 Cr.P.C, and the trial court must consider it, highlighting the procedural involvement of prosecution.

ORDER :

Vijay Kumar Shukla, J.

The present petition is filed u/S.528 of BNSS 2023 challenging the order dated 5.9.2024 passed by I Additional Sessions Judge, Neemuch in Case No.1436/2024 whereby the application filed by the petitioner u/S.306 of Cr.P.C (343 of BNSS 2023) has been rejected.

2. As per prosecution on 04.02.2024, around 04:30, Ashok s/o late Kashmiri Lal Ji Arora, a businessman was going from one place to another in the city of Neemuch in his Volvo car no. DD-02-G-1100. The complainant and few more persons were following Ashok in his black Scorpio, for the purpose of giving Ashok protection. It is further alleged that as soon as both the cars reached City light Furniture, a black Creta car bearing registration number MP-44-CB-2430 came speeding towards them from the wrong side and parked itself in front of the Volvo car. It is further alleged that four people got out of it and tried to kill Ashok (who was travelling in his Volvo car) by indiscriminately firing at the Volvo car, as a result of which Ashok got seriously injured by a bullet fired on him. Thus, complainants retaliated with their licensed guns in self-defense due to which three accused fired at them, took weapons and ran away leaving the vehicle on the spot, leaving one injured person behind and this whole incident was witnessed by the people present there. The incident was reported to the police and a crime for the commission of offence u/Ss. Section 307 , 341, 34 IPC along with Section 25 , 27 of the ARMS ACT has been registered against the accused persons. The petitioner has been arrayed on the basis of the memo of the co-accused and arrested on 16.02.2024 and sent to jail. After completion of the investigation, the prosecution filed the charge sheet against the accused persons for the offences u/Ss. 341, 307, 419, 420,336, 120B, 201, 34 IPC and 25, 27 and 29 of ARMS ACT before the learned court below, a copy of which was provided to the counsel for the petitioner.

3. The petitioner/accused filed an application u/S.306 Cr.P.C before the trial court seeking permission to become an approver. The said application has been rejected by the impugned order mainly on the ground that an application for permission to become approver/power to tender pardon could not have been filed by the accused.

4. Counsel for petitioner argued that the rejection order is contrary to the provisions of Sec.306 and 307 of Cr.P.C and also the law laid down by the Apex Court in the case of Lt.Commander Pascal Fernandes Vs. State of Maharashtra & others AIR 1968 SC 594 : (1968) 1 SCR 695 . He referred para 12 of the said judgment in support of his submission that there is nothing in the language of the Section to show that trial Court must be moved by the prosecution. He may consider an offer by an accused in this case.

5. Per contra, learned counsel for respondents and Objector submitted that from reading the provision of Section 306 , the application for approver/to tender pardon is vested with the prosecution and the accused cannot move such an application. He further relied on the said judgment o f Lt.Commander Pascal Fernandes (supra) and referred para 15 of the judgment. He also relied on the judgment passed by a Single Judge of Mumbai High Court in the matter of Al-Saleha Beig Vs. State & Ors 2008(3)Mh.LJ 724 in which it has been held that power to tender pardon u/Ss. 306 and 307 has to be exercised on behalf of the prosecuting agency. It is for the prosecution to ask that a particular accused, out of several may be tendered pardon, if the prosecution thinks that tender of pardon will be in the interests of a successful prosecution of the other accused whose conviction is not eas