Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 499 OF 2016
(ARISING OUT OF SLP (CRIMINAL) NO. 496 OF 2014)
STATE THROUGH CBI, CHENNAI .....APPELLANT(S)
VERSUS
V. ARUL KUMAR .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
2. The brief facts leading to the filing of the present appeal by the State,
challenging the correctness and legality of order dated 05.03.2013
passed by High Court of Madras, are as follows:
A case was registered on 31.01.2004 against the respondent
Signature Not Verified
herein who was then Regional Chief of Housing Urban Development
Digitally signed by
ASHWANI KUMAR
Date: 2016.05.13
17:47:31 IST
Reason:
Corporation Ltd., Chennai, along with other co-accused. FIR was
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submitted to the Principal Special Judge, CBI on the allegation that the
respondent herein has dishonestly sanctioned 64 loans which were
processed by A-2 to various individuals who sought loans for purchase
of plots developed by A-3 (firm) knowing fully well that A-3 was not a
reputed promoter under the HUDCO Niwas Scheme. It was further
alleged that pursuant to a criminal conspiracy, the respondent
sanctioned loans for inflated amounts causing wrongful loss of
Rs.21,07,546.50 to HUDCO. After completion of inquiry, a chargesheet
was filed against the respondent and 15 others on 30.01.2006 under
Section 120-B read with Sections 420, 467, 468, 471 of the Indian Penal
Code (for short the 'IPC') and Section 13(2) read with Section 13(1) of
the Prevention of Corruption Act (for short the 'PC Act').
3. As per the appellant, during the course of investigation, five individuals
were taken as approvers after recording their confessional statements.
Accordingly, an application was filed by the Prosecutor under Section
306 of the Criminal Procedure Code (for short the 'Code') for grant of
pardon. This application was entertained by the Metropolitan Magistrate
who passed the orders dated 30.01.2006 whereby he granted pardon to
those five approvers.
4. Since the case is triable by the Special Judge under the provisions of
PC Act, who is of the rank of Sessions Judge, the Metropolitan
2
Magistrate committed the case to the Special Judge. After the
committal, the Special Judge framed charges against the respondent
herein (who is arrayed as A-1) as well as other accused persons i.e. A-2
to A-15. These accused persons pleaded not guilty. Much thereafter,
the respondent and two accused persons (A-1 to A-3) challenged the
order of grant of tender of pardon. This challenge was repelled by the
trial court vide orders dated 30.08.2012 resulting in dismissing the
application of the said accused persons. It was held that Section 306 of
the Code does not specifically state that only the Court which inquires
into or tries the case should grant tender of pardon and that the perusal
of records shows that the evidence has been recorded exhaustively in
the questionnaire form in accordance with Section 146 of the Indian
Evidence Act. The Sessions Judge also held that the judgment of this
1
Court in Bangaru Laxman v. State (through CBI) and Another , that
was cited by the respondent herein was distinguishable on facts and
hence not applicable to the present case and that the challenge had
been filed after a lapse of six years with the object of protracting the
proceedings.
5. Feeling aggrieved by the said order, the respondent herein filed Criminal
Miscellaneous Revision under Section 397 read with Section 401 of the
1 (2012) 1 SCC 500
3
Code, in the High Court. The primary contention raised by the
respondent was that the Metropolitan Magistrate had no authority, power
or jurisdiction to entertain application for grant of pardon and it is only
the Special Judge who could entertain such an application. The High
Court vide its impugned judgment has accepted this plea of the
respondent thereby allowing the criminal revision preferred by the
respondent. In the opinion of the High Court, it is the Special Judge
who will have the powers of a Magistrate, though the authority
mentioned in Section 306(1) of the Code includes Magistrate. On that
basis, it is held that it is only the Special Judge who is empowered to
grant tender of pardon and such an order passed by Metropolitan
Magistrate is not lawful. As a consequence, all further proceedings held
subsequent to the tender of pardon by Metropolitan Magistrate were
struck off with direction to the appellant herein to initiate fresh action to
get tender of pardon in accordance with law.
6. The question, therefore, that falls for consideration is as to whether the
Magistrate has power to grant tender of pardon under Section 306 of the
Code or such powers are to be necessarily exercised only by the
Special Judge having regard to the provisions of the PC Act.
7. Mr. Neeraj Kishan Kaul, learned ASG appearing for the State/appellant,
submitted that Section 306(1) of the Code confers such a power upon
4
the Metropolitan Magistrate in no uncertain terms and this issue stands
authoritatively concluded by this Court in the case of P.C. Mishra v.
2
State (CBI) and Another . His second contention, in the alternative
and without prejudice to the aforesaid contention, was that the High
Court failed to take into consideration the provisions of Section 460(g) of
the Code which stipulate that such an irregularity, if at all, would not
vitiate the proceedings. He, thus, argued that in any case tender of
pardon by the Metropolitan Magistrate was an irregularity and the High
Court could not have struck off the proceedings conducted post tender
of pardon. He also referred and relied upon the judgment of this Court
3
in the case of State of H.P. v. Surinder Mohan and Others , for the
proposition that at the time of recording of approvers evidence by
Magistrate at pre-committal stage i.e. at the time of investigation or
inquiry for offence triable by Sessions Court, accused persons have no
right to cross examine the approver.
8. The aforesaid arguments were countered by Mr. Basant, learned senior
counsel, appearing for the respondent. He submitted that power to
grant pardon is an important judicial power which the Court is to grant in
exercise of judicial function and while exercising such a power, Court is
not discharging administrative function which would be the case, for
2 (2014) 14 SCC 629
3 (2000) 2 SCC 396
5
example, when the Magistrate records statement of a person under
Section 164 of the Code. His submission was that on this touchstone, it
was imperative that such a power is exercised only by the Judge
specifically authorised in this behalf and if the matter is dealt with by a
Judge who is lower in rank, the order passed by him would be without
jurisdiction. Taking this argument on the next level, he further submitted
that Section 306 of the Code had to be read along with Sections 307
and 308 thereof in order to understand the scheme of grant of pardon to
an accomplice. His contention was that Section 307 grants such power,
after commitment of a case, to that Court to which the commitment is
made. Proceeding with this line of submission, he paraphrased his
argument with the plea that the very scheme of PC Act is that the case
could be tried only by a Special Judge who would not be below the rank
of Special Judge as provided under Section 4 of the PC Act, which is as
under:
“4. Cases triable by special Judges.-
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973, or in any other law for the
time being in force, the offences specified in
sub-section (1) of section 3 shall be tried by special
Judges only.
(2) Every offence specified in sub-section (1) of
section 3 shall be tried by the special Judge for the
area within which it was committed, or, as the case may
be, by the special Judge appointed for the case, or
6
where there are more special Judges than one for such
area, by such one of them as may be specified in this
behalf by the Central Government.
(3) When trying any case, a special Judge may also
try any offence, other than an offence specified in
section 3, with which the accused may, under the Code
of Criminal Procedure. 1973, be charged at the same
trial.
(4) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, a special Judge shall, as far
as practicable, hold the trial of an offence on day-to-day
basis.”
9. He then referred to Section 5 to point out that there was a specific power
given to the Special Judge to take cognizance even without committing
the case to the Special Judge by the Magistrate. Section 5 reads as
under:
“5. Procedure and powers of special Judge.-
(1) A special Judge may take cognizance of offences
without the accused being committed to him for trial
and, in trying the accused persons, shall follow the
procedure prescribed by the Code of Criminal
Procedure, 1973. for the trial of warrant cases by
Magistrates.
(2) A special Judge may, with a view to obtaining the
evidence of any person supposed to have been directly
or indirectly concerned in or privy to, an offence, tender
a pardon to such person on condition of his making a
full and true disclosure of the whole circumstances
within his knowledge. relating to the offence and to
every other person concerned, whether as principal or
abettor, in the commission thereof and any pardon so
tendered shall, for the purposes of sub-sections (1) to
(5) of section 308 of the Code of Criminal Procedure,
1973, be deemed to have been tendered under section
7
307 of that Code.
(3) Save as provided in sub-sections (1) or
sub-section (2), the provisions of the Code of Criminal
Procedure, 1973, shall, so far as they are not
inconsistent with this Act, apply to the proceedings
before a special Judge; and for the purposes of the
said provisions, the Court of the special Judge shall be
deemed to be a Court of Session and the person
conducting a prosecution before a special Judge shall
be deemed to be a public prosecutor.
(4) In particular and without prejudice to the
generality of the provisions contained in sub-section
(3), the provisions of sections 326 and 475 of the Code
of Criminal Procedure, 1973, shall, so for as may be,
apply to the proceedings before a special Judge and
for the purposes of the said provisions, a special Judge
shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person
convicted by him any sentence authorized by law for
the punishment of the offence of which such person is
convicted.
(6) A special Judge, while trying an offence
punishable under this Act, shall exercise all the powers
and functions exercisable by a District Judge under the
Criminal Law Amendment Ordinance, 1944.”
10. The submission, to be precise, was that PC Act, on this aspect was a
complete Code in itself which gave powers to only the Special Judge to
try the cases, without the involvement of a Magistrate even in
committing the case to the Special Judge and because of this reason,
provision of Section 306 of the Code stand excluded and would have no
application to the cases triable under PC Act. To buttress this
submission, Mr. Basant referred to Sections 4 and 5 of the Code which
8
deal with “Trial of offences under the Indian Penal Code and other laws”
as well as “saving” respectively and provide as follows:
“4. Trial of offences under the Indian Penal Code and
other laws.-
(1) All offences under the Indian Penal Code(45 of
1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt
with according to the same provisions, but subject to
any enactment for the time being in force regulating the
manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.
5. Saving.-
Nothing contained in this Code shall, in the absence of
a specific provision to the contrary, affect any special or
local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time
being in force.”
11. Specifically relying upon the provisions of Section 4(2) of the Code, the
learned senior counsel made a passionate plea that if the offences are
to be tried under a law, other than Indian Penal Code, the Code was
subject to that law/enactment, in force at that time. He argued that since
PC Act is in force with special scheme giving the powers only to the
Special Judge to take cognizance without any committal of proceedings,
it should be treated that the case from very beginning is the post
9
committal case i.e. with the Sessions Judge and, therefore, Magistrate
stands denuded of his powers which are given in respect of offences
under the IPC to him under Section 306 of the Code. He pointed out
that though there was no judgment of this Court on this aspect but
Rajasthan High Court had taken the same view as projected by him, in
4
Rajendra Singh v. State of Rajasthan .
12. Insofar as argument of the appellant predicated on Section 460 of the
Code is concerned, it was sought to repel by Mr. Basant with the
submission that in the aforesaid scenario projected by him, it was not a
case of irregularity but inherent lack of jurisdiction on the part of the
Magistrate to pass the order of tender of pardon and, therefore, Section
460 of the Code had no application. He relied upon the judgment in the
5
case of A. Devendran v. State of Tamil Nadu .
13. We have given our utmost consideration to the respective submissions
advanced by counsel for the parties on both sides. We may state at the
outset that in the instant case, the chargesheet was filed by the
prosecution on 30.01.2006 before the Metropolitan Magistrate. At that
time, prayer for grant of tender of pardon was also made before the
Magistrate taking the plea that five individuals were taken as approvers
after recording their confessional statements. Order was passed by the
4 RLW 2003 (3) Raj. 1865
5 (1997) 11 SCC 720
10
learned Magistrate granting pardon and thereafter the case was
committed to the Additional Special Judge for CBI cases, Chennai as it
is triable by the Special Judge. Special Judge thereafter framed
charges against the accused persons on 10.07.2012. Keeping in mind
the aforesaid facts, let us take note of Section 306 of the Code to find
out as to whether the Magistrate had the requisite power to grant tender
of pardon under the said provision. It reads as under:
“306. Tender of pardon to accomplice.- (1) With a view
to obtaining the evidence of any person supposed to
have been directly or indirectly concerned in or privy to
an offence to which this section applies, the Chief
Judicial Magistrate or a Metropolitan Magistrate at any
stage of the investigation or inquiry into, or the trial of,
the offence, and the Magistrate of the first class
inquiring into or trying the offence, at any, stage of the
inquiry or trial, may tender a pardon to such person on
condition of his making a 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 the
commission thereof.
(2) This section applies to—
(a) any offence triable exclusively by the Court of
Session or by the Court of a Special Judge appointed
under the Criminal Law Amendment Act, 1952 (46 of
1952).
(b) any offence punishable with imprisonment which
may extend to seven years or with a more severe
sentence.
(3) Every Magistrate who tenders a pardon under
Sub-Section (1) shall record—
(a) his reasons for so doing;
11
(b) whether the tender was or was not accepted by the
person to whom it was made,
and shall, on application made by the accused, furnish
him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made
under Sub-Section (1)—
(a) shall be examined as a witness in the Court of the
Magistrate taking cognizance of the offence and in the
subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in
custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon
made under Sub-Section (1) and has been examined
under Sub-Section (4), the Magistrate taking
cognizance of the offence shall, without making any
further inquiry in the case,-
(a) commit it for trial—
(i) to the Court of Session if the offence is triable
exclusively by that Court or if the Magistrate taking
cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the
Criminal Law Amendment Act 1952 (46 of 1952), if the
offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief
Judicial Magistrate who shall try the case himself.”
14. Sub-section (1) of Section 306 of the Code very categorically and
unambiguously mentions Metropolitan Magistrate as one of the Judicial
Officers who can exercise the power of tender of pardon to accomplice.
Thus, Metropolitan Magistrate is specifically given such a power under
12
Section 306 of the Code. Sub-section (2) of Section 306 makes it clear
that this Section applies even to those offences which are triable
exclusively by the Court of Session or by the Court of a Special Judge
appointed under the Criminal Law Amendment Act, 1952. Thus, even
where the cases are triable by a Special Judge, the Metropolitan
Magistrate is authorised to grant tender of pardon. Sub-section (3) and
sub-section (4) outline the procedure that is to be followed in discharging
this function. Sub-section (5), which is material for our purpose,
stipulates that after the person has accepted a tender of pardon made
under sub-section (1) and has been examined under sub-section (4), the
Magistrate taking cognizance of the offence will not make any further
inquiry in the case and commit it for trial to a Court of Special Judge, if
the offence is triable exclusively by that Court. This sub-section makes
the position beyond any pale of doubt, that even when an offence is
triable by a Session Judge, the Magistrate has the requisite power to
take cognizance and grant tender of pardon and, thereafter, commit the
case to the Special Judge for trial. Section 307 of the Code restricts the
power to grant tender of pardon by conferring it in the hands of the Court
to which the commitment is made, only after the commitment of a case.
This provision, also lends support to the position taken by the appellant,
as it makes it clear that after the committal of the case, it is only that
Court to which the commitment is made has the power to tender a
13
pardon, thereby implying that before the commitment of case, Magistrate
is duly empowered. Section 308 of the Code is of no consequence to
decide the controversy before us as it deals with the trial of person not
complying with conditions of pardon.
15. On a plain reading of Section 306 in conjunction with Section 307 of the
Code, it becomes manifest that Magistrate is duly empowered to grant
tender of pardon even in respect of the cases which are triable by the
Session Court or by the Special Judge. This legal position is eloquently
accepted in P.C. Mishra's case. That was also a case under P.C. Act in
which P.C. Mishra (appellant in the said appeal) and his Reader Ravi
Bhatt were made accused persons. During investigation, CBI noticed
that accused Ravi Bhatt was not a leading accused in the case and it
was considered necessary to take him as an approver to prove the
various missing links in the chain of circumstantial evidence, which were
otherwise not available to the investigating agency. In this backdrop, the
CBI filed an application under Section 306 of the Code before the
Special Judge, CBI, Delhi for grant of pardon to Ravi Bhatt. The Special
Judge marked that application to the Chief Metropolitan Magistrate, who,
in turn, referred the same to the Metropolitan Magistrate. The
Metropolitan Magistrate examined the application of the CBI and passed
the order, in exercise of powers conferred under Section 306 of the
14
Code, holding that it was a fit case where pardon should be granted to
Ravi Bhatt to enable the prosecution to unveil all circumstances of the
case and to unearth the truth. Other accused, namely, P.C. Mishra
challenged the said order exactly on the grounds which are taken before
us, i.e., the Magistrate had no power to grant the pardon as the case
was triable by the Special Judge. This Court repelled the contention by
reading such a power in the hands of Metropolitan Magistrate as well,
before the committal of the case and found that power was rightly
exercised as order of committal has not been passed when the order of
grant of pardon was passed by the Magistrate. Following discussion
from the said judgment is worth quoting:
11. Power to grant pardon enjoined under Section 306
Cr.P.C. is a substantial power and the reasons for
tendering pardon must be recorded. It is for the
prosecution to ask that a particular accused, out of
several, may be granted pardon, if it thinks that it is
necessary in the interest of successful prosecution of
other offenders or else the conviction of those offenders
would not be easy. This Court in State of U.P. v. Kailash
Nath Agarwal [ State of U.P. v. Kailash Nath Agarwal ,
(1973) 1 SCC 751 : 1973 SCC (Cri) 698] recognised the
power of the District Magistrate to grant pardon at the
investigation stage. This Court in Kanta Prashad v.
Delhi Admn. [ Kanta Prashad v. Delhi Admn. , AIR 1958
SC 350 : 1958 Cri LJ 698] had the occasion to examine
the scope of Sections 337 and 338 of the old Code
(CrPC 1898) vis-à-vis the powers of a Special Court
constituted under the Criminal Law (Amendment) Act,
1952. This Court held that, reading the proviso to
Section 337 and provisions of Section 338 together, the
District Magistrate is empowered to tender a pardon
15
even after a commitment, if the Court so directs. It was
also held that under Section 8(2) of the Criminal Law
(Amendment) Act, 1952, the Special Judge has also
been granted power to tender pardon. The conferment
of this power on the Special Judge in no way deprives
the District Magistrate of his power to grant a pardon
under Section 337 of the Code. It was held if at the time
when the District Magistrate tenders the pardon, the
case was not before the Special Judge, then there is no
illegality committed by the District Magistrate.
12. The scope of abovementioned provisions again
came up for consideration before this Court in Kailash
Nath Agarwal [ State of U.P. v. Kailash Nath Agarwal ,
(1973) 1 SCC 751 : 1973 SCC (Cri) 698] , wherein this
Court after referring to its earlier judgment in Kanta
Prashad [ Kanta Prashad v. Delhi Admn. , AIR 1958 SC
350 : 1958 Cri LJ 698] held as follows: ( Kailash Nath
Agarwal case [ State of U.P. v. Kailash Nath Agarwal ,
(1973) 1 SCC 751 : 1973 SCC (Cri) 698] , SCC p. 757,
para 13)
“It will be noted from this decision that emphasis is laid
on the fact that the proviso to Section 337 contemplates
concurrent jurisdiction in the District Magistrate and in
the Magistrate making an inquiry or holding the trial to
tender pardon. It is also emphasized that the
conferment of the power to grant pardon on the Special
Judge does not deprive the District Magistrate of his
power to grant pardon under Section 337.”
13. In Bangaru Laxman [ Bangaru Laxman v. State ,
(2012) 1 SCC 500 : (2012) 1 SCC (Cri) 487 : (2012) 2
SCC (L&S) 422] this Court has stated that the power of
Special Judge to grant pardon is an unfettered power
and held that, while trying the offences, the Special
Judge has dual power of a Special Judge as well as
that of a Magistrate. This Court, while interpreting
Section 5, then went on to say as follows: (SCC pp.
509-10, paras 40-42)
“ 40 . Thus, on a harmonious reading of Section 5(2) of
the PC Act with the provisions of Section 306, specially
Section 306(2)( a ) of the Code and Section 26 of the PC
Act, this Court is of the opinion that the Special Judge
under the PC Act, while trying offences, has the dual
16
power of the Sessions Judge as well as that of a
Magistrate. Such a Special Judge conducts the
proceedings under the court both prior to the filing of
charge-sheet as well as after the filing of charge-sheet,
for holding the trial.
41 . … Since this Court has already held that the Special
Court is clothed with the magisterial power of remand,
thus in the absence of a contrary provision, this Court
cannot hold that power to grant pardon at the stage of
investigation can be denied to the Special Court.
42. In view of the discussion made above, this Court
is of the opinion that the power of granting pardon, prior
to the filing of the charge-sheet, is within the domain of
judicial discretion of the Special Judge before whom
such a prayer is made, as in the instant case by the
prosecution.”
14. Bangaru Laxman (supra), therefore, emphasizes
the concurrent jurisdiction of the Special Judge as well
as the Chief Judicial Magistrate or Metropolitan
Magistrate to grant pardon during investigation, but
does not say that the Metropolitan Magistrate has no
power under Section 306 Cr.P.C. to grant pardon during
the investigation i.e. before filing of charge-sheet before
the Special Judge. During investigation, in our view,
both the Special Judge as well as the Magistrate acting
under Section 306 Cr.P.C. have concurrent jurisdiction
to entertain application of pardon which facilitates
proper investigation of the crime. But, as already
indicated, after the committal of the case, the pardon
granted by the Magistrate is not a curable irregularity.”
16. In the light of the aforesaid legal position, we deal with the arguments of
Mr. Basant, learned senior counsel for the respondent as to whether
Section 306 of the Code has no application in the cases relating to
offences under PC Act. No doubt, Section 4 of the PC Act states that
the offences specified in sub-section (1) of Section 3 shall be tried by
17
Special Judges only, notwithstanding anything contained in the Code, or
in any other law for the time being in force. Further, Section 5 gives
power to the Special Judge to take cognizance of offences even without
the accused being committed to him for trial and sub-section (2) of
Section 5 empowers the Special Judge to grant pardon as well. It was
on the basis of these provisions Mr. Basant has advanced the argument
that PC Act was a complete Code and power was specifically given to
the Special Judge and, therefore, Section 306 of the Code had no
application and Magistrate had no power to grant pardon in respect of
offences triable under the PC Act. He submitted that these provisions
were not taken note of by the Division Bench of this Court in P.C.
Mishra's case and, therefore, matter required consideration by a Larger
Bench. We are, however, not impressed by the aforesaid submissions.
17. Sub-section (1) of Section 5, while empowering a Special Judge to take
cognizance of offence without the accused being committed to him for
trial, only has the effect of waiving the otherwise mandatory requirement
of Section 193 of the Code. Section 193 of the Code stipulates that the
Court of Session cannot take cognizance of any offence as a Court of
original jurisdiction unless the case has been committed to it by a
Magistrate under the Code. Thus, embargo of Section 193 of the Code
has been lifted. It, however, nowhere provides that the cognizance
18
cannot be taken by the Magistrate at all. There is, thus, an option given
to the Special Judge to straightway take cognizance of the offences and
not to have the committal route through a Magistrate. However, normal
procedure prescribed under Section 190 of the Code empowering the
Magistrate to take cognizance of such offences, though triable by the
Court of Session, is not given a go-bye. Both the alternatives are
available. In those cases where chargesheet is filed before the
Magistrate, he will have to commit it to the Special Judge. In this
situation, the provisions of Section 306 of the Code would be applicable
and the Magistrate would be empowered to exercise the power under
the said provision. In contrast, in those cases where Special Judge
takes cognizance of offence directly, as he is authorised to do so in view
of Section 5(2) of PC Act, Section 306 of the Code would get bypassed
and as the Special Judge has taken cognizance, it is Section 307 of the
Code which would become applicable. Sub-section (2) of Section 5 of
PC Act makes this position clear by prescribing that it is the Special
Judge who would exercise his powers to tender of pardon as can clearly
be spelled out by the language employed in that provision. Section 5(2)
is to be read in conjunction with Section 5(1) of the PC Act. The
aforesaid legal position would also answer the argument of the learned
counsel for the respondent based on the judgment of this Court in A.
Devendran (supra). In that case, this Court held that once the
19
proceedings are committed to the Court of Session, it is that Court only
to which commitment is made can grant pardon to the approver. The
view taken by us is, rather, in tune with the said judgment.
18. We, therefore, do not find merit in the aforesaid contention of the
learned counsel for the respondent. For these reasons, we also do not
agree with the view taken by the Rajasthan High Court in Rajendra
Singh (supra) and over-rule that judgment.
19. The appellant would succeed even on the basis of Section 460 of the
Code. Clause (g) of this Section which is relevant for us reads as under:
“460. Irregularities which do not vitiate proceedings.- If
any Magistrate not empowered by law to do any of the
following things, namely:-
xx xx xx
(g) to tender a pardon under section 306;
xx xx xx
erroneously in good faith does that thing, his
proceedings shall not be set aside merely on the
ground of his not being so empowered.”
20. This Section treats some of the acts of the Magistrate, specified in
clauses (a) to (i) as 'irregularities'. These are treated as irregularities
even when the Magistrate is not 'empowered by law to do' those acts.
Tendering a pardon under Section 306 of the Code is included in those
20
acts of “irregularities”. Therefore, even if we presume that the
Magistrate was not empowered (though we have held otherwise), the
order passed by the Magistrate is saved by Section 460(g) of the Code.
This aspect also stands clinched in P.C. Mishra's case where the legal
position was stated in the following manner:
15. We may, in this regard, refer to Section 460 Cr.P.C.
which refers to nine kinds of curable irregularities,
provided they are caused erroneously and in good faith.
Irregularity caused while granting pardon is dealt with in
Section 460(g) Cr.P.C. The relevant part of that section
reads as follows:
“460. Irregularities which do not vitiate proceedings.—If
any Magistrate not empowered by law to do any of the
following things, namely—
*
( g ) to tender a pardon under Section 306;
erroneously in good faith does that thing, his
proceedings shall not be set aside merely on the
ground of his not being so empowered.”
Section 461 Cr.P.C. speaks of irregularities which vitiate
proceedings.
16. We have already held, both the Magistrate as
well as the Special Judge has concurrent jurisdiction in
granting pardon under Section 306 Cr.P.C. while the
investigation is going on. But, in a case, where the
Magistrate has exercised his jurisdiction under Section
306 Cr.P.C. even after the appointment of a Special
Judge under the PC Act and has passed an order
granting pardon, the same is only a curable irregularity,
which will not vitiate the proceedings, provided the
order is passed in good faith. In fact, in the instant
case, the Special Judge himself has referred the
application to the Chief Metropolitan
Magistrate/Metropolitan Magistrate to deal with the
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same since the case was under investigation. In such
circumstances, we find no error in the Special Judge
directing the Chief Metropolitan Magistrate or the
Metropolitan Magistrate to pass appropriate orders on
the application of CBI in granting pardon to the second
respondent so as to facilitate the investigation.”
21. In view of our aforesaid discussion, impugned judgment of the High
Court does not stand legal scrutiny. In fact, we find that the High Court
had formulated wrong question for consideration as is clear from
paragraph 5 of the judgment and, therefore, went astray in deciding
such a question. Paragraph 5 of the High Court judgment mentions the
question that was framed:
“5. Point for Consideration: Whether the Special Judge
is competent to Tender of Pardon under Section 306
Cr.P.C. And Section 5(2) of P.C. Act.”
22. The question was not as to whether Special Judge is competent to
tender of pardon. The question was as to whether Magistrate rightly
passed the order of tender of pardon. The High Court took circuitous
route by answering that Special Judge was competent and from that
concluded that Magistrate was not competent.
23. In view of our discussion above, the judgment of the High Court
warrants to be set aside. We, thus, set aside the judgment of the High
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Court and allow the present appeal.
No costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MAY 13, 2016
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ITEM NO.1A COURT NO.12 SECTION IIA
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 496/2014
(Arising out of impugned final judgment and order dated 05/03/2013
in CRLRC No. 1244/2012 passed by the High Court Of Madras)
STATE TH. CBI CHENNAI Petitioner(s)
VERSUS
V. ARUL KUMAR Respondent(s)
Date : 13/05/2016 This petition was called on for pronouncement of
judgment today.
For Petitioner(s) Mr. B. V. Balaram Das,Adv.
For Respondent(s) Mr. Abinash Kumar Mishra,Adv.
Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the
Bench comprising His Lordship and Hon'ble Mr. Justice R.K. Agrawal.
Leave granted.
The Criminal Appeal is allowed in terms of the signed
judgment.
Criminal Miscellaneous Petition(s) pending, if any, shall
stand disposed of accordingly.
(Ashwani Thakur) (Tapan Kr. Chakraborty)
COURT MASTER COURT MASTER
Signed reportable judgment is placed on the file)
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