Full Judgment Text
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PETITIONER:
IQBAL SINGH
Vs.
RESPONDENT:
STATE (DELHI ADMINISTRATION) & ORS.
DATE OF JUDGMENT09/11/1977
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
KAILASAM, P.S.
CITATION:
1977 AIR 2437 1978 SCR (2) 174
1977 SCC (4) 536
ACT:
Criminal Law Amendment Act, 1952, s. 8(1)-Jurisdiction of
Special Judge whether limited by a grant of pardon by
Magistrate u/s. 337(1), Cr.P.C., 1898 Post-pardon
application of s. 8(1), whether violative of Article 14,
Constitution of India.
HEADNOTE:
A charge-sheet against the appellant and two others, was
filed before the Special Judge Delhi u/s. 120-B I.P.C. read
with ss. 161 and 165-A, I.P.C. and s. 5(2) of the Prevention
of Corruption Act, 1947. Earlier, at the Investigation
stage, the Chief Judicial Magistrate, Delhi, had granted
pardon to, an approver u/s. 337(1) Cr. P.C., 1898. :Me
appellant applied for getting the Proceeding quashed, but
his application was dismissed, first by the Special Judge,
and thereafter by the High Court u/Art. 227 of the
Constitution and s. 482. Cr.P.C.. 1898.
The appellant contended before this Court, that, on the
grant of such a, pardon, the application of a. 8(1) of the
Criminal Law Amendment Act, 1952 ceases for the reason that
on the charge sheet being tiled before a Magistrate, the
accused can have the approver’s evidence at the trial tested
against his statement before the Magistrate, while he is
denied this opportunity where the charge sheet is filed
before the Special Judge, thus rendering s. 8(1) of the
Criminal Law Amendment Act if applied to such a case
discriminatory, and violative of Art. 14 of the
Constitution.
Dismissing the appeal the Court,
HELD : (1) Section 337 (2-B), under which the Magistrate is
required to send the case for trial to the Special Judge.
after examining the approver, does not in any way affect the
jurisdiction of the Special Judge. By enacting sub-section
(2B) in-1955, if the legislature sought to curb the power
given to, the Special Judge by s. 8(1) of the Criminal Law
Amendment Act, 1952, it would have expressed its intention
clearly. [177 B-C]
(2)The fact that the approver’s evidence cannot be tested
against any previous statement does not make any material
difference to the detriment of the accused, transgressing
Article 14 of the Constitution. The Special Judge, in any
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case, will have to apply the well established tests for the
appreciation of the accomplice’s evidence. The mere
availability of two procedures would not justify the
quashing of a provision as being violative of Art. 14,
unless there is substantial and qualitative difference
between the two procedures so that one is really and
substantially more drastic and prejudicial than the other.
(177 D-F]
Magantal Chagganlal (P) Ltd. v. Municipal Corporation of
Greater Bombay and Ors. [1975] 1 SCR 1, applied.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 60 of
1977.
Appeal by special leave from the Judgment and Order dated
10.9.76 of the Delhi High Court in Criminal M/s. (Main) No,.
84 of 1976.
A. K. Sen, Bishamberlal and B. B. Lal for the Appellant.
P. N. Lekhi and R. N. Sachthey for Respondent No. 1.
175
The Judgment of the Court was delivered by
GUPTA J., This appeal by special leave is directed against
an order of the Delhi High Court refusing to quash a
proceeding pending against the appellant in the Court of
the Special Judge, Delhi.
On or about November 28, 1973 a charge sheet against the
appellant and two others was filed before, the Special
Judge, Tis Hazari, Delhi, alleging facts constituting
offences punishable under section 120-B Indian Penal Code
read with sections 161 and 165A of the, Indian Penal Code
and section 5(2) of the Prevention of Corruption
Act, 1947. One Martin Joseph Fernandez had been
arrested in correction with the case when it was at the
stage of investigation. He was produced before the, Chief
Judicial Magistrate, Delhi, who tendered a pardon to him
under section 337(1) of the Code of Criminal Procedure, 1898
(hereinafter referred to as the Code). On December 12, 1975
the appellant applied to the Special Judgefor quashing
the proceeding for want of sanction under section 197of
the Code and also on the ground of failure to examine the
said Martin Joseph Fernandez as a witness as required by
sub-sections (2) and (2B) of section 337 of the Code. The
Special Judge having dismissed the application, the
appellant moved the Delhi High Court under Art. 227 of the
Constitution- and section 482 of the Code of Criminal
Procedure, 1973 for setting aside the order passed by the
Special Judge and quashing the proceeding. On September 1
0, 1976 the High Court dismissed the appellant’s petition
and upheld the order of the Special Judge rejecting the
prayer for quashing the proceeding.
Mr. A. K. Sen appearing for the appellant has not pressed
the ground of want of sanction and has confined his argument
to the other ground. His contention is that once a pardon
has be-en tendered to a person at the stage of the
investigation under section 337(1) of the Code, the
provision of section 8(1) of the, Criminal Law Amendment
Act, 1952 empowering a Special Judge to take cognizance of
offences without the accused being committed to him for
trial, ceases to apply and the charge sheet in such a case
must be filed before a competent magistrate. It is argued
that in such a case letting the Special Judge take
cognizance of the offence under section 8(1) of the Criminal
Law Amendment Act would make the provision discriminatory
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offending Article 14 of the Constitution. The argument is
built on sub-section (2B) of section 337 of the Code under
which the magistrate taking cognizance of the offence has to
examine the approver as a witness before sending the case
for trial to the Court of the Special Judge.
To test this argument we may refer briefly to the relevant
provisions of the Code. Section 3 3 7 ( 1 ) of the Code
provides that in the case of any offence specified therein,
the District Magistrate, a Presidency Magistrate, a Sub-
Divisional Magistrate or any Magistrate of the first class
may at any stage of the investigation or enquiry into, or
the trial of the offence may tender a pardon to any person
supposed to have been concerned in the offence in any way on
condition of his making a full an(] true disclosure of the
whole of the circumstances within his knowledge relative to
the offence. Sub-section. (2) of the section requires
176
every person accepting a tender. of pardon under this
section to be examined as a witness in the Court of the
Magistrate taking cognizance of the offence and in the
subsequent trial, if any. Under subsection (2A) where a
person has accepted a tender of pardon and has been examined
under sub-section (2), the Magistrate before whom the
proceedings are pending if he finds reasonable grounds for
believing that the accused is guilty of an offence shall
commit him for trial to the Court of Sessions or, High Court
as the case may be. Subsection (2B) on which the appellant
relies reads:
"In every case where the offence is punishable
under section 161 or section 165 or section
165A of the Indian Penal Code or sub-section
(2) of section 5 of the Prevention of
Corruption Act, 1947, and where a person has
accepted a. tender of pardon and has been
examined under sub-section (2), then,
notwithstanding anything contained in sub-
section (2A), a Magistrate shall, without
making any further inquiry, send the case for
trial to the Court of the Special Judge
appointed under the Criminal Law Amendment
Act, 1952."
Thus under subsection (2B) in the case of an offence
mentioned in them subsection the Magistrate has to send the
case for trial to the Court of the Special Judge without
making any further inquiry as to whether there are
reasonable grounds for believing that the accused is
guilty,. but after the approved has been examined under sub-
section (2).
From these provisions it would appear that where a person
has. accepted a tender of pardon under sub-section (1) of
section 337 at the stage of investigation in a case
involving any of the offences specified in sub-section (2B),
the prosecution can file the charge sheet either in the
court of a competent Magistrate or before the Special Judge
who, under section 8(1) of,the Criminal Law Amendment Act,
1952 has, power to take cognizance of the offence without
the accused being committed to him for trial. It follows
that if the Magistrate takes cognizance of the offence, the
approver will have to bet examined as a witness twice, once
in the court of the Magistrate and again in the court of the
Special Judge to, whom the Magistrate has to send the case
for trial, but if the charge sheet is filed directly in the
court of the Special Judge, he can be examined once only
before. the Special Judge. This means that in a case where
the charge sheet is filed in the court of a Magistrate, the
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accused gets an opportunity of, having the evidence of the,
approver at the trial tested against what he had said before
the Magistrate the accused is denied this opportunity where
the charge sheet is filed in the court of the Special Judge.
Whether the accused will get the advantage of the procedure
which according to the appellant is more, beneficial to the
accused thus depends on the court in which the proceeding is
initiated, and, it is contended, if the choice of forum is
left to the prosecution, it will result in discrimination.
Mr. Sen submits that the only way to avoid this position is
to read subsection (1), (2) and (2B) of section 337 of the
Code and section 8(1) of the Criminal Law Amendment Act,
1952 together and to construe them in a way to require that
in every case where an accomplice is granted pardon, the
charge sheet must be filed in the court of a Magistrate.
177
We are unable to accept the contention. It is clear from
the scheme of section 337 that what is required is that a
person who accepts a tender of pardon must be examined as a
witness at the different stages of tile proceeding. Where,
however, a Special Judge takes cognizance of the case, the
occasion for examining the approver as a witness arises only
once. It is true that in such a case there would be no,
previous evidence of the approver against which his evidence
at the trial could be tested, which would have been
available to the accused had the, proceeding been initiated
in the court of a Magistrate who under subsection (2B) of
section 337 of the Code is required to send the case to
trial to the special Judge, after examining the approver.
But we do not find anything in sub-section (2B) of section
337 to suggest that it affects in any way the jurisdiction
of the Special Judge to take cognizance of an offence
without the accused being committed to him for trial. Sub-
section (2B) was inserted in section 337 in 1955 by
Amendment Act 26 of 1955. If by enacting sub-section (2B)
in 1955 the legislature sought to curb the power even to the
Special Judge by ,section 8(1) of the Criminal Law Amendment
Act, 1952, there is no reason why the legislature should not
have expressed its intention clearly. Also, the-fact that
the approver’s evidence cannot be tested against any
previous statement does not seem to us to make any material
difference to the detriment of the accused transgressing
Article 14 of the Constitution. The special Judge, in any
case will have to apply the well established tests for the
appreciation of the accomplice’s evidence. This Court in
Maganlal Chhagganlal (P) Ltd. V. Municipal Corporation of
Greater Bombay and others(1) held that mere availability of
two procedures would not justify the quashing of a provision
as being violative of Article 14 and that "what is necessary
to attract the inhibition of the Article is that there must
be substantial and qualitative difference between the two
procedure so that one is really and substantially more
drastic and prejudicial than the, other. . . " In our
opinion, there is no such qualitative difference in the two
procedures whither a witness is examined-once or twice does
not in our opinion make any such substantial difference here
that one of them could be described as more drastic than the
other. The appeal is accordingly dismissed.
M.R.
Appeal dismissed.
(1,) [1975] 1 S.C.R. I
178