Full Judgment Text
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1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 7 DAY OF DECEMBER, 2018
PRESENT
THE HON’BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON’BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO.454 OF 2018
BETWEEN
National Investigation Agency,
Hyderabad. Represented by its
Superintendent of Police &
Chief Investigating Officer,
Ms Pratibha Ambedkar, IPS.,
Having its Camp Office at
Carlton House, CID Head Quarters,
Palace Road, Bengaluru – 560 001. .. Appellant
(By Sri. Prasanna Kumar, Spl.PP for NIA)
AND
Mohammed Ayub @ Minto Ayub,
S/o Mohammed Dhosliam,
Aged 26 years, Resident of No.8,
st
Karpaja Vinayagar Koil 1 ,
nd
Ilandnagar 2 Cross Street,
K. Pudar, Madurai, Tamil Nadu.
(Now lodged in Central Prison,
Parppana Agrahara,
Bengaluru – 560 100) ... Respondent
(By Sri. Yaseen Saleha, Advocate)
2
This Criminal Appeal is filed under Section 21(1)
of National Investigation Agency Act, 2008, praying to
set aside the order dated 13.11.2017 passed by the
XLIX Additional City Civil and Sessions Judge (Special
Court for Trial of NIA Cases), Bengaluru in Spl.
C.C.No. 223/2017 thereby rejecting the application
filed by the appellant under Section 306 of Cr.P.C.,
1973 and consequently allow the said application.
This Criminal Appeal coming on for orders, this
day, K.N. PHANEENDRA, J., delivered the following:
J U D G M E N T
The trial court has passed an order under Section
306 of Cr.P.C on an application filed by the appellant
herein who was the complainant in Special
C.C.No.223/2017 on the file of the XLIX Additional City
Civil Judge & Special Judge for NIA cases. Appeal
provision is provided under Section 21 of the National
Investigation Agency Act, 2008, which reads as follows:
“21. Appeals. - (1) Notwithstanding
anything contained in the Code, an appeal shall
lie from any judgment, sentence or order, not
being an interlocutory order, of a Special Court
to the High Court both on facts and on law.
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(2) Every appeal under sub-section (1)
shall be heard by a bench of two Judges of the
High Court and shall, as far as possible, be
disposed of within a period of three months from
the date of admission of the appeal.
(3) Except as aforesaid, no appeal or
revision shall lie to any court from any judgment,
sentence or order including an interlocutory
order of a Special Court.
(4) Notwithstanding anything contained in
sub-section (3) of section 378 of the Code, an
appeal shall lie to the High Court against an
order of the Special Court granting or refusing
bail.
(5) Every appeal under this section shall
be preferred within a period of thirty days from
the date of the judgment, sentence or order
appealed from:
Provided that the High Court may entertain
an appeal after the expiry of the said period of
thirty days if it is satisfied that the appellant had
sufficient cause for not preferring the appeal
within the period of thirty days:
Provided further that no appeal shall be
entertained after the expiry of period of ninety
days.”
4
Therefore, it clearly goes to show that an appeal shall lie
from any judgment, sentence or order not being an
Interlocutory order of Special Court to the High Court,
both on facts and on law. Even sub-clause [3] of
Section 21 also says that except as aforesaid, no appeal
or revision shall lie to any court from any judgment,
sentence or order including an Interlocutory order of a
Special Court.
2. It is worth to mention here, a decision of the
full bench of the Hon'ble Apex Court in the case of
STATE OF UP VS. KAILASH NATH AGARWAL &
OTHERS ( (1973) 1 SCC 751) , wherein the Hon'ble
Apex Court while dealing with the old provisions of
Sections 337 and 338 of Cr.P.C., which governs the
procedure regarding tender of pardon by the
Magistrates, has held that, any order passed by the
Magistrate on the application for tendering pardon, is
not an interlocutory order and the same is revisable. At
paragraphs 20 and 21, the Hon'ble Apex Court has dealt
with this particular aspect, which reads thus:
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“20. 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 raised 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, dated 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 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
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after the Magistrate had refused to grant
pardon.
21. 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, 1965.
Section 435, which deals with the power to
call for the 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 ………” In
our opinion, an order granting pardon under
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
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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 (1-A)
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
inferior criminal court tendering pardon, is
altogether a different matter. That does not
mean that revisional court has no jurisdiction
to entertain a revision against an order
granting pardon.’’
3. On a plain reading of the above said provision,
it clearly discloses that no appeal or revision shall lie
against an interlocutory order passed by the Special
Court. In an application filed under Section 306 Cr.PC.,
a substantive right was claimed by the complainant to
bring one of the witnesses as an approver to the case so
as to prove its case during the course of the trial against
the accused persons. This right of filing the application
under Section 306, in our opinion is a substantive claim
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as per the provision under Section 306 of Cr.P.C. The
consequence of allowing the application or dismissing
the application is a decisive factor so far as such right is
concerned, to consider whether it is an interlocutory
order or it really affects the right of any person.
Dismissal of the application consequently, completely
wash out the right of the complainant or the person who
seeks to bring that man as an approver to the Court.
Allowing of the said application also benefits the
claimant, so that he will not become an accused in the
given case.
4. Therefore, in either of the way, we are of the
opinion that the right of the complainant and right of the
proposed person who would like to tender pardon are
taken away by passing any order on the application
under Section 306 of Cr.PC. Therefore, we are of the
considered opinion that the said order impugned in this
appeal is not an interlocutory order and the said order
affects the rights of the parties. Therefore, the appeal is
maintainable.
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5. Now coming to the merits of this particular
case, the complainant in Special C.C.No.223/2017 has in
fact laid a charge-sheet against as many as 3 accused
persons alleging serious offences under Sections 16, 18,
18(b), 20 of Unlawful Activities (Prevention) Act, 1967,
Section 120-B read with Sections 465, 468 and 471 IPC
and also Sections 3, 4 and 5 of Explosive Substances Act
read with Section 23 of Unlawful Activities (Prevention)
Act, 1967 and also under Section 120-B IPC read with
Section 4 of Prevention of Damage to Public Property
Act, 1984. Serious allegations are made against all the
accused persons. The application was filed stating that
one Mohammed Ayub was also indulged in the above
said activities with other accused persons and he also
virtually participated in facilitating the commission of the
offence by other accused persons. Further to some
extent, he had also knowingly or unknowingly indulged
himself in supporting the other accused persons in
committing such offences. Therefore, the
complainant/Appellant wanted to bring this man as an
approver, who has also readily accepted and agreed
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voluntarily for the same. Hence, the complainant
requested the court to treat that man as an approver
under Section 306 Cr.P.C. and to record his evidence
before the court whether to treat him as an approver or
not. The said application in fact was not contested by
other accused persons and in fact the said Mohammed
Ayub had also readily and voluntarily accepted to
divulge all the truth before the court with regard to the
alleged offences by all the accused persons. Even
before this court, after filing of the petition, notice was
ordered to the respondent Mohammed Ayub and he is
represented by his counsel Shri Yaseen Saleha. The
learned counsel Shri Yaseen Saleha has fairly conceded
before the court that he has absolutely no objection to
allow the application filed under Section 306 Cr.P.C. by
the complainant and submitted that Mohammed Ayub
would divulge all the truth before the court while
considering his application under Section 306 of Cr.P.C.
6. Though nobody has contested the application,
the Trial Court after hearing in detail on two grounds,
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has rejected the said application. It is worth to note
here that up to paragraph 11, the Trial Court has
narrated the factual aspects of the case and has referred
to a decision cited by the learned counsel for the
complainant in this regard. Ultimately at paragraph 13,
the court has observed that the said Mohammed Ayub in
respect of whom the pardon is sought is said to have
been involved in six similar cases, that is bomb blast
cases which took place all over Southern India and it is
also observed that the said Mohammed Ayub has also
sent some messages to some people pertaining to the
bomb blasting at Mysore, etc. The court after
appreciating the factual aspects, has come to the
conclusion that the said Mohammed Ayub cannot be
tendered with pardon for the reason that, he is involved
in six other similar cases in the same modus operandi of
bomb blast. The court has observed that it was quite
possible that he might not be able to tell the whole truth
for the reason that, he may be under constant pressure
of police. It is needless to mention that speaking of
truth is sine qua non under Section 306 of Cr.P.C.
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7. The above said observation, in our opinion, is
baseless. It is but premature for the court to come to
such a conclusion that he may not divulge the whole
truth. There is no compulsion by the court or by the
complainant to give evidence before the Court, even
according to Section 306 of Cr.PC. It is virtually the
voluntariness of one of the accused or any person who is
directly or indirectly connected with the offence or
having a privy to the alleged offences to give such
statement. If he volunteers for the purpose of giving
information about the alleged offences, in such an
eventuality, the court without examining him or
providing an opportunity to give evidence before the
court, cannot jump to such conclusion that the said
statement was not voluntary and he would not divulge
any truth before the court. Whether he divulges the
whole truth or not, is a question of fact which would
arise after looking into the evidence after providing
opportunity to give such statement by the said person
before the court and, after giving him a pardon. In this
13
context, the learned counsel for the appellant has relied
upon a decision in the case of STATE OF RAJASTHAN
VS. BALVEER alias BALLI AND ANOTHER (2013) 16
SCC 321 . The relevant paragraphs are paragraphs 22,
23 and 24, which read as follows:
“22. The first question that we have to
decide is whether the High Court is right in
coming to the conclusion that for being an
approver within the meaning of Section 306
Cr.P.C., a person has to inculpate himself in
the offence and has to be privy to the crime,
otherwise he removes himself from the
category of an accomplice and places himself
as an eyewitness. Section 306 Cr.P.C.
provides that with a view to obtaining the
evidence of any person supposed to have
been directly or indirectly concerned in or
privy to an offence, the Magistrate may
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.
23. This Court in Suresh Chandra Bahri
v. State of Bihar [1995 Supp.(1) SCC 80]
explained the object of Section 306 Cr.P.C. in
the following words: (SCC p.106, para 42)
“42. … The object of Section 306
therefore is to allow pardon in cases
where heinous offence is alleged to
have been committed by several
persons so that with the aid of the
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evidence of the person granted pardon
the offence may be brought home to
the rest. The basis of the tender of
pardon is not the extent of the
culpability of the person to whom
pardon is granted, but the principle is
to prevent the escape of the offenders
from punishment in heinous offences
for lack of evidence. There can
therefore be no objection against
tender of pardon to an accomplice
simply because in his confession, he
does not implicate himself to the same
extent as the other accused because all
that Section 306 requires is that
pardon may be tendered to any person
believed to be involved directly or
indirectly in or privy to an offence.”
24. Thus, the High Court failed to
appreciate that the extent of culpability of
the accomplice in an offence is not material
so long as the Magistrate tendering pardon
believes that the accomplice was involved
directly or indirectly in or was privy to the
offence. The High Court also failed to
appreciate that Section 133 of the Evidence
Act provides that an accomplice shall be a
competent witness against an accused
person and when the pardon is tendered to
an accomplice under Section 306 Cr.P.C., the
accomplice is removed from the category of
co-accused and put into the category of
witness and the evidence of such a witness
as an accomplice can be the basis of
conviction as provided in Section 133 of the
Evidence Act.”
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8. On a meaningful reading and understanding of
the observation made by the Apex Court, it is clear that
the person who seeks for pardon need not be an
accused or he need not inculpate himself in the offence
but however, he has to be privy to the crime or he has
any connection directly or indirectly concerning the
offence. In such an eventuality, the Magistrate may
tender pardon to such person on condition provided
under Section 306 Cr.P.C. Normally, the tender of
pardon has to be granted unless the court comes to a
conclusion that there is any external pressure on the
said person to give such statement inculpating himself.
Such factual aspects can only be ascertained after the
court examines that particular person to ascertain
whether the statement made by that person is voluntary
or it is prompted by any external coercion, or force by
anybody, or he divulged the true facts of the case.
9. Before adverting to the particular aspects of
this case, we also feel it necessary to find out what is
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the procedure that the Magistrates have to follow with
regard to tender of pardon to accomplice.
10. It is worth to refer here to the provisions of
Sections 306, 307 and 308 of Cr.P.C. which deal with
the tender of pardon and trial of person not complying
with the condition of pardon. The said provisions reads
thus:
“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
dis- closure 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
17
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;
(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
18
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.
307. Power to direct tender of pardon.— At
any time after commitment of a case but before
judgment is passed, the Court to which the
commitment is made may, with a view to obtaining
at the trial the evidence of any person supposed to
have been directly or indirectly concerned in, or
privy to, any such offence, tender a pardon on the
same condition to such person.Whoever does any
act with such intention or knowledge, and under
such circumstances that, if he by that act caused
death, he would be guilty of murder, shall be
punished with imprisonment of either description
for a term which may extend to ten years, and
shall also be liable to fine; and if hurt is caused to
any person by such act, the offender shall be liable
either to 1[imprisonment for life], or to such
punishment as is hereinbefore mentioned.
Attempts by life convicts.—2[When any person
offending under this section is under sentence of
1[imprisonment for life], he may, if hurt is caused,
be punished with death.] ”
“ 308. Trial of person not complying with
conditions of pardon.
(1) Where, in regard to a person who has
accepted a tender of pardon made under section
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306 or section 307, the Public Prosecutor certifies
that in his opinion such person has, either by
wilfully concealing anything essential or by giving
false evidence, not complied with the condition on
which the tender was made, such person may be
tried for the offence in respect of which the pardon
was so tendered or for any other offence of which
he appears to have been guilty in connection with
the same matter, and also for the offence of giving
false evidence: Provided that such person shall not
be tried jointly with any of the other accused:
Provided further that such person shall not be tried
for the offence of giving false evidence except with
the sanction of the High Court, and nothing
contained in section 195 or section 340 shall apply
to that offence.
(2) Any statement made by such person
accepting the tender of pardon and recorded by a
Magistrate under section 164 or by a Court under
sub- section (4) of section 306 may be given in
evidence against him at such trial.
(3) At such trial, the accused shall be
entitled to plead that he has complied with the
condition upon which such tender was made; in
which case it shall be for the prosecution to prove
that the condition has no been complied with.
(4) At such trial, the Court shall-
(a) if it is a Court of Session, before the
charge is read out an explained to the accused;
(b) if it is the Court of a Magistrate, before
the evidence of the witnesses for the prosecution is
20
taken, ask the accused whether he pleads that he
has complied with the conditions on which the
tender of pardon was made.
If the accused does so plead, the Court shall
record the plea an proceed with the trial and it
shall, before passing judgment in the case, find
whether or not the accused has complied with the
conditions of the pardon, and, if it finds that he has
so complied, it shall, notwithstanding anything
contained in this Code, pass judgment of acquittal.”
11. On meaningful reading and understanding of
the above said provision, it is clear that any person can
seek for tender of pardon, but the condition is that, he
should have been directly or indirectly concerned in or
privy to an offence for which the tender of pardon is
sought. If such application is filed either by the co-
accused or by any such person, the Magistrate has to
record his reasons for so tendering pardon and whether
the tender of pardon was necessary in the said case or
not. In that eventuality, he has to see only whether the
said person was directly or indirectly concerned in or
privy to an offence to which the provision applies and
that the pardon can be granted with a condition that the
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said person should make a full and true disclosure of the
whole of the circumstances within his knowledge relating
to the offences and to every other person concerned,
whether as principal or abettor, in the commission
thereon. With such condition, the person who requests
for pardon shall be examined under sub section (4) of
Section 306 of Cr.P.C. in the court and thereafter, the
Magistrate has to ascertain whether the conditions
imposed upon the accused are fulfilled on going through
the statement made by the accused.
12. Section 308 of Cr.P.C. also provides that if
for any reason the person who has accepted the tender
of pardon u/s.306 of Cr.P.C., if the Public Prosecutor
certifies that in his opinion, that the said person has
willfully concealed anything or by giving false evidence
not complied with the condition on which the tender was
made in such an eventuality, the pardon granted to him
can be cancelled and the said person may be tried as an
accused in the said case and also he can be tried for
giving false evidence. Further, if any statement is made
22
by such person, accepting the tender of pardon and his
statement is recorded, it can be used as evidence
against him in such trial, as if evidence given by him in
that particular case.
13. Therefore, it is clear from the above said
provisions that if a person has sought for tender of
pardon, if he knows directly or indirectly, the whole or
part of truth of the said case and once he comes before
the court to disclose the same, generally, the court
should grant, the pardon as prayed for, subject to other
conditions contained in the other provisions. Only after
tender of pardon u/s.306 of Cr.P.C. and recording his
statement after examination, the court can pass an
appropriate order u/s.308 of Cr.P.C. if necessary.
Otherwise, the said tender of pardon shall be continued.
14. In this particular case, though the said person
Mohammed Ayub was said to have been involved in six
other similar bomb blast cases, that itself is not
sufficient to draw an inference at this stage that he may
23
not divulge the whole truth pertaining to this particular
case. Therefore, in our opinion, the said observation
made by the Trial Court is too premature and without
any basis. The court has to consider all those things,
only after tendering pardon and examining the said
person to ascertain whether tender of pardon can be
continued to him or not. It is also worth to mention
here that even after following the procedure under
Section 306 Cr.P.C., if the court comes to the conclusion
that no truth has been revealed from the said person or
during the course of following the procedure if the court
comes to the conclusion that there was any external
pressure or coercion from any corner, then also the
court at any stage of the proceedings under Section 308
Cr.P.C. can withdraw that pardon given to the said
person and he can be cited either as an accused or as a
witness to the case.
15. It is also a notable point in this particular
case that this person has already been examined by the
court under Section 164 of Cr.P.C. With all curiosity, in
24
order to ascertain as to what statement he has given
before court, we have secured the statement recorded
by the trial Court, of the said Mohammed Ayub under
Section 164 Cr.P.C., which was sent by the Trial Court in
a sealed cover. After opening the sealed cover before
this court, we have carefully examined the contents of
the said statement. On an overall reading of the entire
statement, it revealed to us that Mohammed Ayub has
given a statement that he has got direct and indirect
connection with reference to the offences alleged against
other accused persons. In one paragraph of the
statement, he has gone to the extent of stating that one
of the accused had come to his house and stayed in a
particular room and he prepared bomb in the said room.
Therefore, this clearly discloses that, he has already
divulged whatever he wanted to divulge before the court
under Section 164 Cr.P.C. Therefore, even by tendering
pardon, it makes no difference, on the other hand, it
would strengthen the case of the prosecution, and if this
witness deviates from his statement, a case for perjury
can be initiated against him, apart from citing him as an
25
accused in connection with the said case in which he has
given such statement.
16-. Under the above said circumstances, we do
not find any strong reasons to sustain the order passed
by the Trial Court. On the other hand, the Trial Court
ought to have allowed the application by tendering
pardon and followed the procedure as contemplated
under Section 306 Cr.P.C. to find out whether conditions
of tender of pardon have been complied or not.
Prematurely dismissing the application in our opinion, is
not proper and correct. In the above said
circumstances, we proceed to pass the following:
O R D E R
The appeal is allowed. The order passed by the
Trial Court in Spl.C.C.No.223/2017 dated 13.11.2017 by
the XLIX Additional City Civil Judge & Special Judge for
NIA cases, is hereby set aside. Consequently, the
application filed under Section 306 Cr.P.C. is restored
with a direction that the same has to be dealt with by
26
the Trial Court, by providing an opportunity to the
complainant and the person who sought for tendering of
pardon, in accordance with law, in the light of the
observations made in the body of this order.
The statement under Section 164 Cr.P.C. sent to
this court in a sealed cover shall be transmitted back to
the Trial Court in a sealed cover, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KS/PL