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Judgment
Sathar Sayeed, J.—It appears from the facts of the case that the petitioner in this revision case filed Crl. M.P. No. 822 of 1978 to tender
pardon to him and examine him as a witness for the prosecution. The Special Police Establishment, Madras has also taken out an application
before the Special Judge, Madurai in Crl. M.P. No. 886 of 1978 to tender pardon to the petitioner (2nd accused) and examine him as a witness
on behalf of the prosecution. In short, the petitioner and the prosecution, both filed two petitions to take the petitioner as one of the prosecution
witnesses after tendering him pardon and examine him on behalf of the prosecution, even though he figured as one of the accused persons. It
further appears from the facts of the case that there were five accused. Al was the Agent of the State Bank, Uthamapalayam. One Kudbuddin was
the Head Clerk of the bank, A3 was the village Karnam of Kombai village and A-4 was the son of A-2. It is brought out from the facts that during
July, 1972 to July, 1973, A-2 to A-5 have alleged to have entered into a conspiracy at Uthamapalayam and other places by agreeing themselves
to commit certain illegal acts and offences, to defraud the State Bank of India of its funds in the matter of sanction of agricultural loans and have
thus committed criminal breach of trust in respect of the funds belonging to the bank by dishonest and fraudulent means. It is further found from the
case that A-l has obtained a bribe of Rs. 60,000 and the Head Clerk has obtained a bribe of about Rs. 6,000 and the petitioner in Crl. M.P. No.
882 of 1978 is said to have obtained a bribe of Rs. 70.000 and other persons have also obtained bribes. Under these circumstances, the State
prosecuted the petitioner and other accused under Ss. 120-B read with Ss. 420, 409 and 161 of the Indian Penal Code and also under S. 5(2)
read with 5(1)(a)(c) and (d) of the Prevention of Corruption Act, 1947. At this stage, the prosecution thought of obtaining pardon with respect to
A-2 and so filed Cr. M. No. 886 of 1978 before the Special Judge Madurai, to tender him pardon. Similarly the petitioner (A-2) who figured as
the petitioner in Crl. M.P. No. 822 of 1978 also filed petition praying to tender pardon to him so that he may turn as an approver on behalf of the
prosecution.
The petitioner need not have filed any petition at all when the State has filed a petition to take the petitioner as an approver. However, both
these petitions came up before the Special Judge and the learned Special Judge observed that if the petitioner in Crl. M.P. No. 822 of 1978 is
willing to pay the actual amount alleged to have been misappropriated by him, then his bona fides for tendering pardon will be ''considered. The
learned Special Judge further observed that the application filed by the petitioner in Crl. M.P. No. 822 of 1978 is belated and does not appear to
be bona fide, and that it was filed to serve his selfish ends. It is with those observations, both the Crl. M.P. Nos. 822 and 886 of 1978 were
dismissed. It is against this dismissal order, the petitioner in Crl. M.P. No. 822 of 1978 has filed the above revision case.
Since the Special Police Establishment, Madras had to go with the process of obtaining permission from higher authorities, they have not filed a
revision in time against the order in Crl. M.P. No. 886 of 1978, but they are supporting the case of the petitioner herein.
It is very clear from the facts of the case that the petitioner along with the others have cheated the State Bank and they were charged under Ss.
120B, 420, 409 and 161, I.P.C., and under S. 5(2) read with S. 5(l)(a)(c) and (d) of the Prevention of Corruption Act, 1947. When once the
State comes forward with a petition before Court asking the Court to tender pardon with respect to a particular accused, so that if he would turn
as an approver it would be helpful to the prosecution to prove substantially the charge leveled against the other assumed it is the duty of Court to
see the veracity and also to tender pardon so that the accused, pardoned, may turn as an approver. But, on the other hand, the learned Special
Judge instead of considering that aspect has observed that if the petitioner is willing to pay the actual amount misappropriated and shows his bona
fides, then only pardon will be granted. Such an observation by the learned Special Judge is uncalled for and is irregular.
In Pascal Fernandes v. State of Maharashtra 1968 L.W. Cri. 70 at 75 it has been observed by the Supreme Court, on the question of tendering
pardon, as follows:-
Ordinarily it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly
applies to the Special Judges he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable
director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency, and must,
therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it
may not need approver''s testimony. It may also not like the tender of pardon to the particular accused, because he may be the brain behind the
crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner.
If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not
easy without the approver''s testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on
himself the task of determining the propriety of tendering pardon in the circumstances of the case.
It is so obvious from the observation of the Supreme Court that the proper course for the Special Judge under the circumstances is to ask for a
statement from the prosecution on the request of the accused. But, in this case the prosecution also wants that the petitioner be tendered pardon so
that he may turn as an approver. Under such circumstances, the Special Judges should not have taken on himself, the task of determining the
propriety of tendering pardon. Learned counsel for the respondents 2 to 4 contends that S. 8(2) of the Criminal Law Amendment Act, 1952 only
contemplates pardon at the discretion of the Court and therefore, the Special Judge under the circumstances of the case, thought fit that it is not
necessary to tender pardon to the petitioner. I am afraid that such a contention cannot be sustained. When once the State comes forward with a
petition making out an allegation that a particular accused is necessary as an approver and on the basis of that prays to the Court to tender him
pardon, the Court on the facts has to exercise its discretion and that discretion should be ""governed by rule, not by humor, it must not be arbitrary,
vague and fanciful but legal and regular"". ""An appeal to Judge''s discretion is an appeal to his judicial conscience. The discretion must be exercised
not in opposition to but in accordance with the established principles of law.
In this case I find, the learned Special Judge has not observed the principles laid down by the Supreme Court stated above, but on the other
hand, has directed the petitioner that if pardon is to be tendered, he should deposit the actual amount said to have been misappropriated by him
and should also show his bona fides. The order of the lower Court as such is contrary to law and perverse.
Under these circumstances, the order of the Special Judge, Madurai made in Crl. M.P. No. 822 of 1978, dated 22nd June, 1978, is set aside
and the criminal revision case is allowed.