The court clarified that a public prosecutor's certificate is not strictly necessary for revoking a pardon under Section 308, as the court can infer compliance from evidence.

O R D E R

Challenging the order passed by the learned Chief Judicial Magistrate, Coimbatore in Crl.M.P.No.28611 of 2021 in C.C.No.291 of 2012 dated 04.07.2024, the present revision has been preferred by the petitioner.

2. The brief facts of the case is as follows:

There are three accused originally punishable under Sections

420, 468, 471, 120B IPC. It is alleged that the respondent abused his authority and processed for grant of pardon of A2/Rajasekar and filed an application in Crl.M.P.No.1091 of 2012 and the same was granted by the trial Court vide order dated 28.06.2012 without examination of A2. A2 who has played major role in the crime was granted pardon and at the time of filing the final report, he was not cited as witness in the list of witnesses. However, an application was filed to examine A2 as witness which was allowed through an order dated 14.11.2018. In this backdrop, an application was filed to recall the pardon order in Crl.M.P.No.28611 of 2021, as the pardoned accused has not made full disclosure of the offence alleged which amount to exculpatory in nature and he was also not subjected to cross examination. But the said application was dismissed by the Court below stating that the petitioner has filed it without any valid reasons.

3. Aggrieved over the same, the present revision has been filed by the petitioner.

4. The learned counsel for the petitioner submitted that there are three accused in this case and one of the accused by name Rajasekaran, who was arrayed as A2 in the First Information Report was shown as approver since at the time of filing final report, he had been granted pardon after following due process. He further submitted that an application was filed by the petitioner herein for recall of the pardon order due to the failure of the accused to disclose the offence and for making false statements during examination under Section 306 of Cr.P.C., and the said application was dismissed by the Court without following the settled law despite the factual matrix. He contended that the accused was not subjected to cross examination as mandated under Section 306 (4) of Cr.P.C., and also that the Court failed to understand the enabling section for pardon grants which applies as per Section 306 (2)(a) only to cases triable by the Court of Sessions or Special Courts under the Criminal Law Amendment. He further submitted that whether it is mandatory or directory for the prosecutor to give a certificate for removal of the deed of the approver/A2. It is also to be noted that most of the judgment given by majority of the Courts held that the prosecutor has to produce the required certificate for grant of pardon and it is pertinent to note that the pardoned accused was a proclaimed offender. He also submitted that during trial, the said approver was examined as PW29 and during cross examination, he did not disclose the true facts and his statement recorded under Sec.164 of Cr.P.C., also does not provide any interlocutory statement and was only exculpatory in nature.

5. While continuing his submissions, the learned counsel submitted that the learned Chief Judicial Magistrate had grossly failed to consider the mandate that pardoning witness has to be examined as witness during the pardon procedure. The Court below failed to hold that non examination of pardoned accused as witness and subject him to cross examination and thereby denied the right to other accused. He further submitted that the learned Magistrate failed to hold that the examination of the pardoned accused as witness mean apart from chief subjecting him to cross examination as well as per Section 138 of the Indian Evidence Act. The Court below failed to appreciate the supporting decision as reported in Uravakonda Vijayaraj Paul V. State and others wherein the Andhra Pradesh Court, has categorically considered the powers, object and functions of magistrate in granting pardon with reference to the old code and the said decision is ruling the roost even t