Full Judgment Text
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PETITIONER:
STATE OF U. P.
Vs.
RESPONDENT:
KAILASH NATH AGARWAL & ORS.
DATE OF JUDGMENT16/03/1973
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
ALAGIRISWAMI, A.
DUA, I.D.
CITATION:
1973 AIR 2210 1973 SCR (3) 728
1973 SCC (1) 751
ACT:
Cr.P.C.--S. 337(1)-Whether a District Magistrate is
competent to grant pardon under the section when a First,
Class Magistrate, before whom the enquiry proceedings were
pending, had rejected such a request.
HEADNOTE:
Respondent entered into a conspiracy as a result of which
they defrauded the railway administration during the year
1958-59, very large amounts. A charge-sheet was filed
against them under s. 120(B), 420,467, 468 and 471 I.P.C.
The enquiry proceedings were started in the court of the 1st
Class Magistrate, Kanpur. The 2nd and 3rd respondents gave
confessional statements and both of them made applications
under s. 337 of Cr.P.C. praying for grant of pardon. The
Magistrate passed an order declining to grant pardon and
rejected the applications. However, on behalf of the State,
an application was filed before the District Magistrate,
Kanpur, to grant pardon to respondent 2 and 3 on condition
of their making a full disclosure of the whole case. In the
application, reference was made to the ’fact that a request
made by these two accused for grant of pardon was rejected
by the Magistrate enquiring into the offence., The applica-
tion was opposed by respondents No. 1 and 4 to 6 on the
ground that the District Magistrate had no power to grant
pardon when the enquiring Magistrate had declined a similar
request. The District Magistrate rejected this contention
and granted pardon to the 2nd respondent on condition of his
making a full disclosure of the whole case.
The first respondent filed a criminal revision before the
District Judge Kanpur, challenging this order. Ultimately
it was heard by a Civil and Sessions Judge, Kanpur. It was
held that the District Magistrate was not competent to grant
pardon to respondent No. 2. The Civil and Sessions Judge
further held that the order of the District Magistrate was
wholly without jurisdiction and therefore, referred the
matter to the High Court with a recommendation that the
order of the District Magistrate granting pardon to the
second respondent should be quashed. The High Court held
that the District Magistrate had no power to grant pardon
after it had been once refused by the 1st Class Magistrate
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enquiring into the matter and that the order of the District
Magistrate was revisable by the Civil and Sessions Judge and
quashed the order of the District Magistrate, Kanpur. The
question was whether the District Magistrate is competent
under s. 337(1) of the Cr.P.C. to grant pardon to an accused
when a 1st Class Magistrate before whom the enquiry
proceedings had ;been pending had rejected such a request.
Party allowing the appeal,
HELD : (i) A perusal of s. 337(1) shows that the District
Magistrate, a Presidency Magistrate, a Sub-Divisional
Magistrate or any Magistrate of the First Class may tender
pardon in the circumstances mentioned therein at any stage
of the investigation or enquiry into or trial of the
offence. But under the proviso if the offence is under
enquiry or trial, only the District Magistrate and only the
Magistrate making the enquiry or holding the trial, can
exercise the power. Similarly where the offence
729
is under investigation, it is only a Magistrate having
jurisdiction in the place where-the offence might be
enquired into or tried that can exercise the power. Even
such a Magistrate can exercise that power only if the
sanction of the District Magistrate has been obtained.
While there is a restriction on the powers of the Magistrate
of the First Class, no such restriction is to be found in
the proviso on the powers of the District Magistrate either
at the stage of investigation or enquiry into or trial of
the offence. Emphasis is to be laid on the fact that the
proviso to s. 337 which contemplates concurrent jurisdiction
in the District Magistrate and in the Magistrate making an
enquiry or holding the trial to tender pardons., The mere
fact that a Magistrate of the first class enquiring into an
offence has declined to grant pardon, as in the present
case, does not take away the power or jurisdiction of the
District Magistrate to entertain a further application for
grant of pardon. However, judicial propriety requires that
if a higher authority had declined to tender pardon, a lower
authority should not grant pardon except on fresh facts.
The above principle will apply even to proceedings under s.
338. [735B]
(ii) The question whether the State should have filed a
revision against the order of refusal of the Magistrate,
does not require an answer, because of the fact that the
District Magistrate has got concurrent powers and that he
can be approached under s. 337 even after the Magistrate
enquiring into the offence had declined to grant pardon.
[739D]
(iii) An order granting pardon is open to revision but
whether the court whose powers are invoked for that purpose
will interfere or not is a matter depending upon the
circumstances in each case. Therefore, the :first
respondent’s revision before the Sessions Court, was
competent and a revision petition lies before this Court.
[740A]
(iv) A pardon granted bona fide is fully protected by the
provisions of S. 529 of the Cr.P.C., but in view of the
District Magistrate’s power to grant pardon, it is not
necessary that the State should rely on s. 529 Clause (g) of
the Cr. P. C. [741A]
Kanta Prasad v. Delhi Administration [1958] S.C.R. 1218,
A.J., Peiris v. State of Madras [1954] Cr.L.J. 1638, State
of Andhra Pradesh v. Cheemalapati Ganeswara & Anr. [1964] 3
S.C.R. 297 and M. M. Kochar v. The State A.I.R. 1969, Delhi
21, referred to.
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 193 of
1969.
Appeal by certificate from the judgment and order dated Sep-
tember 11, 1968 of the Allahabad High Court in Criminal
Reference No. 284 of 1967.
O. P. Rana, for the appellant.
B. P. Maheshwari ’and Saresh Sethi, for respondents Nos. 5
and 6.
The Judgment of the Court was delivered by
VAIDIALINGAM, J. The question that arises for consideration
in this appeal by the State of U.P. on certificate is-
" whether a District Magistrate is competent
under section 337(1) of the Code of Criminal
Procedure to
730
grant pardon to an accused person when a First
Class Magistrate, before whom the inquiry
proceedings had been pending, had rejected
such a request"
Before we proceed to state the facts, it has to be mentioned
that it has been brought to our notice that Sarwan Lal, the
4th respondent, died after the appeal was filed in this
Court by the State. In consequence the appeal has abated
against him. However, in the course of the judgment, we
Will have to refer to him also when we state the case of the
prosecution.
The prosecution case against the accused was as follows
The first respondent, Kailash Nath, along with Sarwan Lal,
Moti Chandra and Smt. Shanti Devi, respondents 4 to 6
respectively, were the Directors of M/s M. K. Brothers (P)
Ltd., Kanpur and were doing business in cotton in Kanpur.
In the course of their business, they used to purchase
cotton from out stations and sell them to the textile mills
at Kanpur. The second respondent, Kesardeo Budhia, was an
employee of M/s M. K. Brothers (P) Ltd. and used to look
after the work of taking delivery of cotton bales from the
Kanpur railway station. The third respondent, Devi Prasad
Agarwal, was a representative of J. K. Cotton Mills Kanpur.
In 1958 the financial position of M/s M. K. Brothers (P)
Ltd. became very precarious and in consequence they com-
mitted considerable delay in clearing the consignments of
cotton from the station premises and this resulted in their
being liable for heavy arrears of demurrage and wharfage.
As the textile industry itself was facing a crisis in 1958,
the Government, with a view to give some assistance, granted
several concessions. One such was that the consignees, who,
had their own railway sidings, were granted remission in
respect of demurrage and wharfage payable to the railway
authorities. This enabled the consignees to take delivery
of goods according to their convenience. In the said year,
as M/s M. K. Brothers (P) Ltd. had received a large number
of consignments of cotton bales, they evolved a scheme to
avail themselves of the benefit granted to the textile
industry by the Government. For this purpose, they hatched
a plan by which they misrepresented that the consignments of
cotton bales received at Kanpur railway station, though in
their name, actually belonged to, M/s J. K. Cotton Mills
Kanpur. The second respondent, an employee of M/s M. K.
Brothers, the third respondent, an employee of J. K. Cotton
Mills and respondents 1 and 4 to 6, the Directors of M/s M.
K. Brothers, entered into a conspiracy in furtherance of
their object and as a result thereof they submitted false
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applications to the railway authorities on behalf of J. K.
Cotton Mills for remission on the representation that the
goods had been consigned to J. K. Cotton Mills. In
731
furtherance of the object of this conspiracy, they also made
false endorsements on the railway receipts for transfer of
the bales. As a result of the conspiracy, they defrauded
the railway administration during the year 1958-59 of very
large amounts Accordingly a charge-sheet was filed against
respondents 1 to 6, under sections 120(B), 420, 467, 468 and
471 of the Indian Penal Code.
The ’inquiry proceedings were started in the Court of the
First Class Magistrate, Kanpur, as the case was triable as a
Sessions case. On June 30, 1962, the second respondent,
Kesardeo Budhia, made a confessional statement. Similarly,
Devi Prasad Agarwal, the third respondent, gave a
confessional statement on July 12, 1963. Both respondents 2
and 3 made applications on December 17, 1964, under section
337 of the Criminal Procedure Court before the First Class
Magistrate praying for grant of pardon. The said
applications were supported by the prosecution, but the
other accused opposed the grant of pardon. The Magistrate
by his order dated September 27, 1965, declined to grant
pardon and rejected the applications of both the accused.
However, on behalf of the State its Special counsel filed an
application on April 15, 1966, before the District
Magistrate, Kanpur, to grant pardon to respondents 2 and 3
on condition of their making a full and true disclosure of
the whole of the circumstances. In this application, it was
stated that the First Class Magistrate, Kanpur, was
inquiring into the matter and was recording evidence of
witnesses for the purpose of being satisfied that a prima
facie case had been established. It was stressed that the
direct evidence of conspiracy would be furnished by
respondents 2 and 3 if they are granted pardon: and examined
as witnesses. Reference was also made to the effect that a
request made by those accused for grant of pardon was
rejected by the Magistrate enquiring into the offences.
This application was opposed by respondents 1 and 4 to 6 on
the ground that the District Magistrate has no power to
grant. pardon when once the enquiring Magistrate has
declined a similar request. The District Magistrate
rejected this contention and held that he had jurisdiction,
to consider the application on merits, notwithstanding the
fact that the enquiring Magistrate had declined to grant
pardon. On merits, the Magistrate held that in the
circumstances it is enough if the second respondent,
Kesardeo Budhia alone is tendered pardon. Accordingly, by
his order dated June 1, 1966, he granted pardon under
section 337 to this accused alone on condition of his making
a full and proper disclosure of the whole of the
circumstances within his knowledge relating to the offences.
The first respondent filed Criminal Revision No. 85 of 1966
before the District Judge, Kanpur, challenging the order of
the District Magistrate which. was ultimately dealt with by
the Civil
732
and Sessions Judge, Kanpur. The jurisdiction of the
District Magistrate to grant pardon, after the First Class
Magistrate having refused, was again the subject of debate
before the Sessions court. The State and the second
respondent contended before the Civil & Sessions Judge that
the Revision was not competent. The Civil and Sessions
Judge rejected the contention of the State that no revision
lies. It upheld the plea of the first respondent that the
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District Magistrate was not competent to, grant pardon to,
Kesardeo Budhia. The view of the Civil and Sessions Judge
is that if the State was dissatisfied with the order dated
September 27, 1965, passed by the First Class Magistrate,
that order should have been challenged in revision before
the District Judge or the District Magistrate. Not having
done so, it cannot invoke the jurisdiction of the District
Magistrate under section. 337. The Civil and Sessions Judge
has further held that the order of the District Magistrate
was wholly without jurisdiction and in consequence by his
order dated June 16, 1967, referred the matter to the High
Court with a recommendation that the order dated June 1.
1966, of the District Magistrate granting pardon to the
second respondent should be quashed.
This reference of the Civil and Sessions Judge before the
High Court was Criminal Reference No. 284 of 1967. The High
Court by its judgment and order dated September 11, 1968,
has held that the District Magistrate has no power to grant
pardon after it has been once refused by the First Class
Magistrate enquiring into the matter and that the order of
the District Magistrate was revisable by the Civil and
Sessions Judge. In this view, the High Court accepted the
Reference and quashed the order dated June 1, 1966, of the
District Magistrate, Kanpur.
Mr. Rana, learned counsel for the State, has raised three
contentions :
(1) The power under section 337 of the
Criminal Procedure Code exercisable by the
various Magistrates mentioned therein is
concurrent and the District Magistrate in the
circumstances of this case was competent to
grant pardon to respondent No. 2.
(2) The Revision filed by the first respondent
before the Civil and Sessions Judge against
the order of the District Magistrate was
incompetent.
(3) In any event, the grant of pardon by the
District Magistrate is only an irregularity,
which is cured by clause (g) of section 529 of
the Criminal Procedure Code; and as such the
High Court was in error in interfering with
the said order.
733
Mr. B. P. Maheshwari, learned counsel appearing for respon-
dents 5 and 6, has supported the order of the High Court.
’According to him, the scheme of section 337 clearly shows
that the question of granting or refusing pardon has to be
dealt with in the circumstance and by the officers referred
to therein. When once that jurisdiction has been invoked
before one officer, it cannot be reopened before another
officer. The counsel contended that it may be that if fresh
facts have come to light later and are placed before the
court, it may have jurisdiction to reconsider an order
passed at the early stage of proceedings. In this case, the
State had not placed any material before the District
Magistrate that was not already before the First Class
Magistrate. That being so, the District Magistrate had no
jurisdiction to consider on the same facts a second request
made for the same purpose. Mr. Maheshwari further pointed
out that if the State was aggrieved by the order of the
Magistrate dated September 27, 1965, it should have
challenged the same in revision before the Sessions Judge.
In view of these circumstances, he pointed out that the High
Court had rightly held that the order of the District
Magistrate was without jurisdiction.
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It is now necessary to refer to the material provisions of
tile Criminal Procedure Code. Though section 337 is the
relevant section, nevertheless, it is necessary to refer to
section 338 also. These two sections occurring in chapter
XXIV dealing with "general provisions as to inquiries and
trials" are as follows:
Tender of pardon to accomplice.
" 337(1). In the case of any offence triable
exclusively by the High Court or Court of
Session, or any offence punishable with
imprisonment which may extend to seven years,
or any offence under any of the following
sections of the Indian Penal Code, namely,
sections 161, 165, 165A, 216A, 369, 401, 435
and 477A, the District Magistrate, a
Presidency Magistrate, a Subdivisional
Magistrate or any Magistrate of the first
class may, at any stage of the investigation
or enquiry into, or the trial of the offence,
with a view to obtaining the evidence of any
person supposed to have been directly or
indirectly concerned in or privy to the
offence, 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;
Provided that, where the offence is under
inquiry or trial, no Magistrate of the first
class other than the District Magistrate shall
exercise the power hereby conferred
734
unless he is the Magistrate making the inquiry
or holding the trial, and, where the offence
is under investigation, no such Magistrate
shall exercise the said power unless he is a
Magistrate having jurisdiction in a place
where the offence might be inquired into or
tried and the sanction of the District
Magistrate has been obtained to the exercise
thereof."
(1A) "Every Magistrate who tenders a pardon
under sub-section (1) shall record Ms reasons
for so doing, and shall, on application made
by the accused, furnish him with a copy of
such record :
Provided that the accused shall pay for the
same unless the Magistrate for some special
reason thinks fit to furnish it free of cost."
Power to direct tender of pardon.
"338. At any time after commitment, but
before judgment is passed, the Court to which
the commitment is made may, with the view of
obtaining on the trial the evidence of any
person supposed to have been directly or
indirectly concerned in, or privy to, any such
offence, tender, or order the committing
Magistrate or the District Magistrate to
tender, a pardon on the same condition to such
person."
Section 435 (1) gives power to the High Court, the Sessions
Judge and to the other authorities mentioned therein to call
for records of inferior courts for the purposes mentioned
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therein. Sub-section 4 provides that if an application
under section 435 has been made either to the Sessions Judge
or the District Magistrate, no further application shall be
entertained by the other of them. Section 529 occurring in
Chapter XLV under the, heading "of irregular proceedings"
deals with irregularities which do not vitiate proceedings.
The material part of this section relevant for the present
purpose is as follows :-
Irregularities which do not vitiate
proceedings.
"529. If any Magistrate not empowered by law
to do any of the following things, namely
(g) to tender a pardon under section 337 or
section 338
*
735
.lm15
erroneously in good faith does that thing, his proceedings
shall not be set aside merely on the ground of his- not
being so empowered."
A perusal of section 3 37 (1) shows that the District
Magistrate,. a Presidency Magistrate, a Sub-divisional
Magistrate or any Magistrate of the First Class may tender
pardon in the circumstances mentioned therein at any stage
of the investigation or inquiry into or trial of the
offence. But under the provision, if the offence is under
inquiry or trial, the District Magistrate and only the
Magistrate making the inquiry or holding the trial, can
exercise the power. Similarly, where the offence is under
investigation, it is only a Magistrate having jurisdiction
in a place where the offence might be enquired into or
tried, can exercise the power. Even such a Magistrate can
exercise that power only if the sanction of the District
Magistrate has been obtained. While there is a restriction
on the powers of the Magistrate of the First Class, no such.
restriction is to be found in the proviso on the powers of
the District Magistrate either at the stage of investigation
or inquiry into, or trial of the offence. Sub-section 1 (A)
makes it obligatory on the Magistrate tendering pardon to
record his reasons for so doing and also of furnishing the
accused with a copy of his order. No doubt, under the
proviso, the accused has to pay for the same unless the
Magistrate thinks fit, for some special reasons, to furnish
the order free of cost.
Section 338 deals: with the grant of pardon after the stage
of commitment has been reached but before judgment is
passed. It gives full power to the court, to which
commitment is made, to tender pardon or order the Committing
Magistrate or the District Magistrate to tender pardon on
the same conditions. The question arose in Kanta Prashad v.
Delhi Administration(1), whether the District Magistrate had
power to tender a pardon under section 337 in eases where
the offence was triable exclusively by the court of the
Special Judge. Having regard to the provisions of the
Criminal Law (Amendment) Act, 1952 and the scheme of’
section 337 of the Criminal Procedure Code, this, Court held
that as the court of the Special Judge was in law a court of
Session, the District Magistrate had power to grant pardon.
The contention that under such circumstances the proper
authority to grant pardon was the Special Judge was
rejected, as the position of the Special Judge was similar
to, that of a Judge of a court of Session.,It was observed :
"The proviso to section 337 of the Code of
Criminal Procedure contemplates concurrent
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jurisdiction in the District Magistrate and
the Magistrate making an
(1) [1958] S.C.R. 1218.
736
inquiry or holding the trail to tender a
pardon. According to the provisions of S. 338
of the Code even after commitment but before
judgment is passed, the Court to which the
commitment is made may tender a pardon or
order the committing Magistrate or the
District Magistrate to tender a pardon. It
would seem, therefore, that the District
Magistrate is empowered to tender a pardon
even after a commitment if the Court so
directs. Under s. 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 S. 337 of
the Code".
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 emphasised 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. In A. J. Peiris v. State of Madras(1),
the question arose before this Court whether after
commitment had already been made, the District Magistrate
’has power to grant pardon. From the facts mentioned in the
judgment it is seen that on July 24, 1951, the police
submitted the charge-sheet against the accused and one
Albert. Albert, however, could not be traced and the other
accused were committed to the Sessions on August 4, 1952.
Albert was arrested on July 28, 1952, and his confession was
recorded by the Magistrate after complying with all the
necessary formalities required by law. On August 28, 1952,
he was granted pardon by the District Magistrate, South
Kanara. The evidence of Albert was relied on for convicting
the other accused. This Court rejected the contention that
after commitment the only court having power to tender
pardon was the court of Sessions Judge and not the District
Magistrate. It was observed
"By section 338, Criminal Procedure Code,
power is no doubt given after commitment is
made to tender pardon, before judgment is
passed, to any person supposed to have been
directly or indirectly concerned with any
offence or order the Committing Magistrate or
the District Magistrate to tender the pardon.
The section vests the court to which
commitment is made, with power to tender
pardon or order the Committing Magistrate or
the District Magistrate to tender pardon
during the trial of the case but it does not
take away the power confer-
(1) 1954 Cr. L.J. 1638.
737
red under the proviso to section 337(1) of the Criminal
Procedure Code."
The proviso contains an additional provision which empowers
the District Magistrate to tender pardon where the offences
are under inquiry or trial. The present case is covered by
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the proviso to section 337 and not by section 338 of the
Criminal Procedure Code. We hold, therefore, that the
tender of pardon by the District Magistrate on August 28,
1952, was valid".
In State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, &
Anr. (1) one of the questions that came up for consideration
was whether a pardon granted under section 337(1) by the
Additional District Magistrate in a case, where an inquiry
was pending before. the District Magistrate, was illegal. it
was contended that under section 337 only the powers of a
District Magistrate, namely, the powers under entry 7 (a) in
Part V of Schedule III of the Code of Criminal Procedure, as
distinguished from the power under the proviso to the said
section, can be conferred upon an Additional District
Magistrate. This Court, having regard to the order of
Madras Government No. 3106 dated September 9, 1949, and
entry 7(a) in Party of Schedule III, rejected this
contention. It is the view of this Court that :
"The power conferred by sub-section (1) of s.
337 on the different clauses of Magistrates is
of the same character. The power to grant
pardon in a case pending before another
Magistrate is no doubt conferred by the
proviso only on the District Magistrate. But
entry 7 (a) in Part V of Sch. III when it
refers to the power of a District Magistrate
under s. 337(1) does not exclude the power
under the proviso".
The decision referred to above clearly establish that the
powers conferred on the District Magistrate and the other
Magistrates under section 337 are concurrent and that a
District Magistrate, even after commitment, has power to
tender pardon. The proviso to section 337(1) makes it clear
that the District Magistrate, in addition to the Magistrates
referred to therein, has power to tender pardon during
inquiry into or trial of the offence. Though the above
decisions had no occasion to consider whether the District
Magistrate has power to tender pardon, when the Magistrate
enquiring into the offence has once refused, we are not able
to find any such restriction placed upon the power of the
District Magistrate by the wording of the section itself.
As the power conferred by sub-section 1 of section 337 on
the different classes of Magis--
(1) [1964] 3 S.C.R. 297.
738
trate is concurent and is of the same character, it follows
that the power to tender pardon can be exercised by everyone
of the authorities mentioned therein subject to the
limitation specified in the section itself. The mere fact
that a Magistrate of the First Class enquiring into the
offence has declined to grant pardon, as in the case before
us, does not take away the power or jurisdiction of the
District Magistrate to entertain a further application for
grant of pardon. Though the District Magistrate has got
power to consider a further application, nevertheless, it is
needless to state that he will have due regard to the views
expressed by the Magistrate for refusing to grant pardon.
We must, however, state that judicial propriety requires
that if a higher authority had declined to tender pardon, a
lower authority should not grant pardon except on fresh
facts which were not and could not have been before the
higher authority when it declined to grant pardon. Even if
pardon has been refused on one occasion, a further request
may be made ,before the same Magistrate or the District
Magistrate. But such a further request can be entertained.
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and considered only if fresh or additional facts are placed
by the party concerned.
The above principles will apply even to proceedings under
section 338. Even after commitment, a District Magistrate
will have power to grant pardon. But if the court of
Session had declined to grant pardon, the District
Magistrate will not on the same facts entertain a similar
application for grant of pardon. It ’is necessary to bear
in mind the principles stated above so that the authorities
under sections 337 and 338 can exercise jurisdiction in
harmony in order to further the interest of justice and
avoid ’conflicting orders being passed.
The conferment of concurrent powers is also to be seen in
section 498. Under sub-section 1, the High Court or court
of Session has got power to direct that any person be
admitted to bail or to reduce the bail required by a police
officer or a Magistrate. Even though the Court of Session
may have refused a request in this behalf for grant of bail,
the High Court can be approached for a similar relief.
Under sub-section 2, again power has been given to the High
Court or Court of Session to order the re-arrest of a person
admitted to bail under sub-section
When the legislature intended that two authorities should
not exercise jurisdiction on an identical matter, it has
used appropriate language to that effect. For instance,
under section 436(1), the Sessions Judge and the District
Magistrate, in addition to the High ’Court and Sub-
divisional Magistrate, have been empowered to call for and
examine the records of any proceedings before any inferior
criminal court. Though it may appear from subsections 1
that a District Magistrate can be moved even after the
similar relief has been refused by the Sessions Judge or
vice versa, the
739
position is made clear by sub-section 4. That sub-section
provides that if either the Sessions Judge or the District
Magistrate has been moved, no further application shall be
entertained by the other of them. Though under sub-section
1 both of them have concurrent power, nevertheless, sub-
section 4 clearly places a restriction on their powers by
stating that if one of them had been moved, the other cannot
entertain an application for the- same purpose.
In view of the decisions of this Court referred to above, it
is not necessary for us to refer to the decisions of the
High Court taking one view or the other. From what is
stated above, it follows that the view of the High Court
that when once the Magistrate’ enquiring into the offence
had refused to grant pardon, the District Magistrate had no
jurisdiction to entertain an application for the same
purpose, is erroneous.
The further question is whether the State should have filed
a revision against the order of the Magistrate dated
September 27, 1965, refusing to grant pardon instead of
approaching the District Magistrate for the same purpose.
This raises the question whether an order refusing to grant
pardon is revisable ? The High Court has taken the view that
the said order is revisable and that the State, if it was
aggrieved, should have filed a revision before the Sessions
Judge. We have already referred to the fact that the first
respondent had filed a revision before the Sessions Court
against the order of the District Magistrate June 1, 1966.
This revision has been held by the High Court to be a proper
one. As we have held that the District Magistrate has got
concurrent powers and that he can be approached under
section 337 even after the Magistrate enquiring into the
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offence has declined to grant pardon, the question whether
the State should have filed a revision against the order of
the Magistrate becomes really academic. On the view
expressed by us, the State was justified in approaching the
District Magistrate even after the Magistrate had refused to
grant pardon.
However, the question regarding the revisability of an order
granting pardon arises regarding the competency of the
revision filed ’by the first respondent before the Sessions
Court challenging the order of the District Magistrate dated
June 1, 1966. Section 435, which deals with the power to
call for records of inferior courts, takes in the High
Court, Sessions Judge, District Magistrate and any Sub-
divisional Magistrate empowered by the State Government in
that behalf. The power is given to call for and examine the
records of any proceedings before any inferior criminal
court for the purpose of satisfying itself as to the
correctness, legality or propriety of "any finding, sentence
or order recorded or passed, and as to the regularity of any
proceedings of such inferior Court
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section 337 or 338 is certainly an Order recorded or passed
and the revisional court has got jurisdiction to consider
the correctness, legality or propriety of such an order. At
any rate, tender of a pardon is certainly a proceeding of a
criminal court. The revising authority can call for the
records to satisfy itself as to the regularity of any
proceedings of an inferior criminal court. It should also
be noted that sub-section 1A of section 337 imposes an
obligation on the Magistrate tendering pardon to record his
reasons for so doing. Whether a revisional authority will
interfere with the order of an interior criminal court
tendering pardon, is altogether a different matter. That
does not mean that a revisional court has no jurisdiction to
entertain a revision against an order granting pardon.
The decision that has been brought to our notice holding
that section 435 cannot be invoked in the case or an order
made either under section 337 or under section 338 is that
of a learned single Judge of the Delhi High Court in M. M.
Kochar v. The State(1). The learned Judge has held that
the tender of pardon and its acceptance by the person
concerned is a matter entirely between the court and the
person to whom pardon is tendered and that a co-accused has
no power to challenge the same, as it is a purely executive
or administrative action and not a judicial decision.
Tendering of pardon, it is further stated, is only an
exercise of one of the many prerogatives of the sovereign.
After having held that the High Court’s jurisdiction cannot
be invoked under section 435, the learned Judge on merits
held that the tender of pardon was legal.
This decision of the Delhi High Court was challenged before
this Court in Criminal Appeal No. 109 of 1968. In its
judgment dated September 16, 1968, this Court on merits
agreed with the High Court that the tender of pardon was-
proper. The question of the nature of the power exercised
in granting pardon and the other question whether an order
granting pardon was revisable by a superior court, were,
however, left open. We have indicated earlier that an order
granting pardon is open to revision, but whether the court
whose powers are invoked for that purpose will interfere or
not, is a matter depending upon the circumstances of each
case. Accordingly we hold that the first respondent’s
revision before the Sessions Court was competent and reject
the second contention of Mr. Rana.
Coming to the third contention of Mr. Rana, it has been held
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by this Court in State of Andhra Pradesh v. Cheemalapati
Ganeshwara Rao & Anr. (2) that "a pardon granted bona fide
is
(1) A.I.R. 1969 Delhi 21.
(2) [1964] 3 S.C.R. 297.
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fully protected by the provisions of section 529 of the
Criminal Procedure Code". We have already extracted the
relevant part of section 529. On the view expressed by us
that the order of the District Magistrate granting pardon is
legal and valid, it is not necessary for the State to rely
on section 529, clause (g) in this case.
In the result the order and judgment of the High Court dated
September 11, 1968, in so far as it holds that the grant of
pardon by the District Magistrate was illegal are set aside
and to that extent the appeal is allowed in part. The order
dated June 1, 1966 of the District Magistrate, Kanpur, will
stand restored.
S.C. Appeal allowed in part.
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