Bhup Singh vs State of Haryana

M.M. Punchhi, J. (Oral)

This is petition for revision against the order of Shri S.D. Arora, Additional Sessions Judge, Hissar whereby during trial he granted pardon to Tulsi Ram, one of the accused facing trial under sections 304/308/323/148/149 and other lesser offences.

On the homicidal death of one Kanshi Ram, six person were arraigned as accused inclusive of Tulsi Ram. The occurrence took place on 19th July 1984. Sometimes later, four accused persons inclusive of Tulsi Ram obtained bail from the Court of Sessions. Incidentally, Tulsi Ram accused happens to be a nephew of the deceased Kanshi Ram. As per the prosecution case, there are three eyewitnesses to the crime, two of whom are ladies namely Smt. Shyama and Smt Lilo, who are stated to have received injuries during the occurrence. The third one is Rajinder. When the case was committed to the Court of Sessions and assigned to the Additional Sessions Judge, Hissar, the charge was framed against the accused persons inclusive of Tulsi Ram. The stage of recording the evidence had not yet arrived when Tulsi Ram while on bail applied to the trial Judge for grant of pardon under section 307 of the Code of Criminal Procedure. The learned Judge entertained the application and sent him to custody requiring him to be produced on 17th April, 1985, after a span of a few days. On the said date when Tulsi Ram was produced in custody, his application was considered and granted vide order now sought to be revised at the instance of the other accused. Thought the State of Haryana at the time when the application was being considered at the trial stage appeared to have joined in the request of Tulsi Ram in his being granted pardon on becoming an approver, the learned counsel for the State now appearing does not support the application for, according to him, the discretion exercised by the learned judge is not sound in law. The only contestant to the petition, who has appear on his own, is Tulsi Ram through his counsel.

The main ground urged by Mr. Mulkh Raj Mahajan, learned counsel for the petitioner, is that in the presence of three eyewitnesses, the discretion exercised by the learned judge to grant pardon to Tulsi Ram was unsound and contrary to the object for which the power to grant pardon has been conferred on the Court of Session under Section 307 of the Code of Criminal Procedure. That section is in the following terms:

"307. Power to direct tender of pardon At any time after commitment of a case put 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."

This section as also section 306 of the Code of Criminal Procedure confer on the Courts mentioned therein power to tender to an accomplice with a view to obtaining his evidence, if he is supposed to have been directly or indirectly concerned in or privy to an offence to which the sections are attracted. Learned counsel further contends vehemently that if pardons are granted to accomplices all and sundry it would defeat the very purpose for which the State, as the protector of citizens person and property is required to bring to book culprits of crime, as this would tantamount to sale of one of its fundamental functions. On the other hand, Mr. Bali, learned counsel for Tulsi Ram respondent, contends that discretion exercised by the learned judge in this regard is not open to revision and in any case the present is not a case in which interference be caused.

I have pondered over the matter. It seems to me that larger questions involving the interest of the State are involved when a Court embarks upon granting pardon to an accomplice. It is in substance and in fact a contract between the Stat on the one hand and a person to whom it is granted on the other. A person in the context has been defined as an act of grace which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. A Division Bench of Punjab High Court in A.L. Mehra v. The State, A.I.R. 1958 Punjab 72, had occasion to quote with approval an American Jurist, who said that the grant of pardon carries an imputation of a guilt and in acceptance there of confession of it. Now if this be the essence of the power, it would seem that the exercise of it has to be very sparingly and cautiously when it is otherwise the fundamental duty of the State to try offences and punish the guilty. It is only in exceptional cases that this function in a bargaining way is surrendered in favour of receiving evidence from an accomplice against his guilty associates. Nevertheless pardon should not and cannot be easily available to an accomplice on his mere askance or even on the readiness of the Court to have more evidence qualitative or quantitative in nature. In Ram Chand and others v. The State A.I.R. 1952 Himachal Pradesh 57, a Judicial Commissioner held that a Magistrate cannot be said to have exercised his sound discretion in tendering pardon to one of the accused if, besides the approver, there were as many as six eyewitnesses to the crime who had given evidence in that case. The view expressed by the Himachal Pradesh Judicial Commissioner was adopted in approval by a Single Bench of Mysore High Court in Kashinath Krishan Bapat v. The State of Mysore and another, 1963(1) Criminal Law Journal 547. At the same time, the learned Judge expressed the view that the exercise of the power to tender pardon rests on judicial discretion and the Magistrate or the judge should proceed with great caution on sufficient grounds recognising the risk which the grant of pardon involves of allowing an offender to escape just punishment at the expense of the other accused. These principles, as afore expressed, as they seem to me, govern the parameters, within which the power to grant pardon to an accomplice is required to be regulated by a Court or a Magistrate. Such power should be exercised only in exceptional cases and one such case can be that, but for the evidence of the accomplice, it would otherwise be not possible to bring the guilt home to other accused.

The principles afore spelled out are sought to be met by Mr. Bali on the anvil of a Judgment of the Supreme Court in Babuli Narayan Bahera v. The State of Orissa, 1974 (Vol 6). The unreported judgments 82, which was a case in which the approver was granted pardon at the late stage of the trial in the presence of the evidence of the eyewitnesses but the evidence of the approver had been discarded by the Court of the first instance as also the High Court. The evidence of the eyewitnesses was discarded by the Supreme Court. In the said judgment, but for the factum that it was a case of an approver who had been tendered pardon during trial in the presence of the eye witnesses no ratio is discernible as to whether the grant of pardon to the approver was a proper and sound exercise of discretion. That judgment is of no assistance to Mr. Bali Another instance cited by Mr. Bali is of one in Rabi Das and others v. State 1976 in Criminal Law Journal 2004, in which the evidence of the approver was employed in a case where there were eyewitnesses. But there again, the question never cropped up as has cropped up in the instant case. This precedent too is of no assistance to the cause of Mr. Bali.

On going through the impugned order of the trial Judge, I find that the learned judge was influenced only by the circumstances explained in the application by the Tulsi Ram which were to the effect that he had actively participated in the crime by bringing his coaccused in the tractor on the spot and thereafter had snatched and broken the gun in possession of the deceased. This version the learned judge was prepared to accept as he took the view that the testimony of Tulsi Ram only advanced justice in the case and he may arrive at a natural and true conclusion in the case if he is allowed to become an approver. He concluded by saying that in the larger interest of justice and in peculiar circumstances of the case he was granting pardon to Tulsi Ram on the condition of his making full and true disclosure of whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as member or abettor of the commission thereof. These observations do not even remotely touch the exceptional nature of the power conferred on the Court. Nowhere in the impugned order has the prosecution evidence of the eye witnesses being available been taken note of and rubbed against the advantage of having an approver on the bargain of tendering him pardon. If contract be the essence of such power, the view of the learned trial judge that the other three eyewitnesses had not given evidence so far and it could not be said that direct evidence was very much there in the case, to say the least, is rather unfortunate. He could not have at that stage anticipated that eyewitnesses would not support the prosecution case. The Public Prosecutor did not make any such statement about his being apprehensive that the eyewitnesses were not likely to support the prosecution in this case. Mere support of the Public Prosecutor to the application of Tulsi Ram did not obligate the learned judge to grant the application oblivious of the caution and the soundness of the discretion he was supposed to exercise. Thus, his order appears to me palpably unsound in the circumstances.

For the forgoing reasons, this petition is allowed. The impugned order is set aside. It is directed that the trial against the accused inclusive of Tulsi Ram be proceeded in accordance with law as if he had not been granted any pardon.