Dated this the 20th day of September 2019

In the petition on hand, the petitioner in C.M.P. No.231 of

2019 and 1^st accused in C.C.No.219 of 2017 pending on the

files of Judicial First Class Magistrate Court-II, Kothamangalam

(for short, 'the trial court') seeks to set aside the order passed

by the court on 04.09.2019, declining pardon to him.

2.

C.M.P.No.231 of 2019 is an application filed by the

petitioner before the said court under Section 306 Cr.P.C

seeking pardon. The petitioner is the 1^st accused in an elephant

poaching case. He has filed an application seeking to obtain

pardon from the court to act as an approver. The court has

observed that the 1^st accused is involved in several other

elephant poaching cases and forest cases. The court found that

the prosecution is devoid of a case that without the testimony

of the petitioner, conviction of the rest of the accused could not

be secured. Accordingly, his application for grant of pardon was

dismissed. Aggrieved thereby, the petitioner has approached

Crl.MC.No.6522 OF 2019 3

this Court in the petition on hand.

3.

Sri.K.K.Dheerendra Krishnan, the learned counsel for

the petitioner has contended that the court below is highly

unjustified in passing an order of the nature. According to him,

without understanding the true spirit of Section 306 Cr.P.C, the

trial court has arrived at a finding that the application filed

under Section 306 Cr.P.C is not sustainable. It is contended by

the learned counsel that the rejection of the application was

purely mechanical, without going into the merits of the report

filed by the investigating officer and also the facts confessed by

the petitioner.

4.

Uniform law of procedure for the whole of India both

in presidency towns and in the moffusil was enacted and it was

the Criminal Procedure Code, 1882. It was supplanted by the

Code of Criminal Procedure, 1898 (Act V of 1898). Grant of

pardon to an accomplice is dealt with under the aforesaid Code

in Section 337 Cr.P.C. Hidayattullah.J, (as his Lordship then

was) speaking for a three judge bench had dealt with the issue

in

Lt.Commander Pascal Fernandes v. State of

Maharashtra and others (AIR 1968 SC 595) and observed

as follows:

Crl.MC.No.6522 OF 2019 4

“The next question is whether the Special Judge

acted with due propriety in his jurisdiction. Here the

interests of the accused are just as important as

those of the prosecution. No procedure or action can

be in the interest of justice if it is prejudicial to an

accused. There are also matters of public policy to

consider. Before the Special Judge acts to tender

pardon, he must, of course, know the nature of the

evidence the person seeking conditional pardon is

likely to give, the nature of his complicity and the

degree of his culpability in relation to the offence and

in relation to the co-accused......”

5.

In Laxmipat Choraria v. State of Maharashtra

(AIR 1968 SC 938) the Apex Court while dealing with a

similar issue under the provisions of the old Code held:

“14......To keep the sword hanging over the head

of an accomplice and to examine him as a witness is

to encourage perjury. Perhaps it will be possible to

enlarge Section 337 to take in certain special

laws....where accomplice testimony will always be

useful and witnesses will come forward because of the

conditional pardon offered to them....”

6.

Section 306 Cr.P.C is verbatim to Section 337 of the

old Code. There is no change at all with respect to the power to

grant pardon.

7.

The learned counsel has cited CBI v. Ashok Kumar

Aggarwal and Another [2013 KHC 4917 (SC)] to support

his contention that the court need not have to look into the

gravity of the involvement of the petitioner in the offence or the

Crl.MC.No.6522 OF 2019 5

involvement of the petitioner in other crimes, while considering

an application seeking tendor of pardon. The learned counsel

has relied on Paragraph 20 of the judgment cited supra, which

is extracted hereunder:-

“20.