Inder Chand Choraria vs State of West Bengal

N.C. Talukdar, J.—This Rule is against an order dated August 22,1968, passed by Sri R.L. Mukherjee, Presidency Magistrate, Sixth Court, Calcutta, allowing the application of the accused No. 2, Joychandlal Gauti alias J.J. Gauti, and tendering to him pardon u/s 337 of the Code of Criminal Procedure in case No. G.R. 1802/67 pending under Sections 120-B/420, 420, 467 and 471, Indian Penal Code.

The facts leading on to the present Rule can be put in a short compass. Sri Jotram, Deputy Superintendent of Police, C.B.I., Special Police Establishment, Fraud Squad (1), New Delhi, filed a charge-sheet before the learned Chief Presidency Magistrate, Calcutta, on December 28, 1967, against the two Petitioners as well as five others u/s 120B read with Sections 420, 467 and 471, Indian Penal Code, alleging, inter alia, that between August 1962 and February 1964 they along with some others were parties to a criminal conspiracy to cheat M/s National Company Limited by dishonestly obtaining from the company higher amounts than were actually spent for the purchase of jute. In the said charge-sheet, the accused Petitioner No. 1, Inder Chand Choraria, was described as the Jute Purchase Master of M/s National Company Limited at 18A Brabourne Road, Calcutta, and the accused Petitioner No. 2, Jhawarlal Mukim, was described as the ex-purchase-in-charge of the Karimpur agency of the said firm. The learned Chief Presidency Magistrate, Calcutta, by his order of the same date issued summons against the accused persons under the above-mentioned charges. The accused persons thereafter appeared and were released on bail and an enquiry u/s 207A of the Code of Criminal Procedure was held before Sri R.L. Mukherjee, Presidency Magistrate, Sixth Court, Calcutta, to whom the case was transferred on May 15, 1968. On July 11, 1968, a petition was filed before the learned enquiring Magistrate on behalf of the accused No. 2, Joychandlal Gauti, praying for a grant of pardon u/s 337 of the Code of Criminal Procedure and stating, inter alia, that the said accused was concerned in the offences and was prepared to make a full and true disclosure of the circumstances within his knowledge relative to the offences and to every other person concerned including himself and that he was prepared to give true and material evidence in the case. The accused was cautioned on that date by the learned Presidency Magistrate, who heard the arguments of both the parties on the said petition and ultimately by his order dated August 22, 1968, he was, pleased to allow the prayer of the said accused and tendered him pardon u/s 337 of the Code of Criminal Procedure. This order has been impugned and forms the subject-matter of the present Rule.

Mr. Anil Chandra Mitra, the counsel (with Mr. Bejoy Kumar Bhose, Advocate) appearing on behalf of the accused-Petitioner, has made a three-fold submission. Mr. Mitra contended in the first place that the order passed by the learned Presidency Magistrate was bad in law and de hors the provisions of Section 337 of the Code of Criminal Procedure inasmuch as amongst others it had overlooked the guiding, principles laid down by the Courts in the matter of granting pardon under the said section. In this context, Mr. Mitra referred to the case of Lt. Commander Pascal Fernandes Vs. The State of Maharashtra and Others, and relied on the observations made therein as constituting the guiding principles in this behalf. He further referred to the unreported decision of the Supreme Court dated September 16,1968, in the case of M.M. Kochar v. Delhi Administration Supreme Court judgment dated September 16, 1968 and also to the case of Kashinath Krishna Bapat v. The State of Mysore and Anr. (1963) 1 Cri. L.J. 547 as bearing on the point. The second contention raised by the Learned Counsel is that the accused No. 2, being the cashier at the material time of the Karimpur agency of the National Company Limited, and according to the prosecution allegations, having forged the documents, was prima facie the principle offender so far as that agency is concerned and, as such, the grant of pardon to him has operated to the serious prejudice of the accused Petitioners. The third and last contention of Mr. Mitra is that, in any event, the order passed by the learned Presidency Magistrate is not maintainable in law because of the observations made by him in the first part of the order, ruling out the ultimate findings arrived at by him at the end of the judgment justifying the grant of such pardon. Mr. R.C. Deb, Advocate-General, West Bengal, (with Mr. ''Dilip Kumar Butt, Advocate) appearing on behalf of the State joined issue. The learned Advocate-General contended in the first place that the application that was filed on behalf of the accused No. 2 for grant of pardon does conform to the provisions of Section 337 of the Code of Criminal Procedure and the statements made in paras. 2 and 3 therein bear out the same. Mr. Beb urges that the intention of the Legislature as incorporated in Section 337 of the Code is merely that the approver is to be granted pardon under the said section on condition of his making a full and true disclosure and not that a preliminary statement by him is to be recorded as the condition precedent for granting such, pardon. In this context, Mr. Deb relied on the observations of the Supreme Court made in the case of Lt. Commander Pascal Fernandes v. State of Maharastra and Ors. (Supra) wherein their Lordships held that

the pardon so tendered is also a 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... There is no provision in recording a preliminary statement of the person.

The learned Advocate-General- further distinguished the principles laid down by their Lordships of the Supreme Court in the above-mentioned case and submitted that the said observations were made in a different context and were indeed in the nature of an obiter. The ultimate findings are given at the end of the judgment (Supra) that--

it is not for the special Judge to enter the ring as a veritable director of prosecution. The power which the special Judge exercised 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.

It is for the State to express its desire that it ''needs'' the approver''s testimony. The prosecution, in the case referred to above, only joined with the-prayer for granting the prayer in the High Court. The next submission of the learned Advocate-General is that there is no bar in law to the principal offender being granted pardon u/s 337 of the Code of Criminal Procedure and that in any event the materials on record, in the instant case, do not establish for certain that the accused No. 2 is the principal offender, relative to the offence amongst the different accused persons. The third and last submission of Mr. Deb is that the findings arrived at by the learned Presidency Magistrate are not self-contradictory as alleged or at all but that in the first part of the order the learned Presidency Magistrate was only making his observations with regard to the application for pardon as was filed on July 11, 1968, and in that context he stated that the same disclosed nothing specific to show the nature of the evidence which the accused is likely to give nor the nature of his complicity nor the degree of his culpability in relation to the offence or in relation to every other person concerned. The ultimate findings forming the basis of the order u/s 337 of the Code of Criminal Procedure arc at the end, wherein on an appraisal of the documents and statements the learned Presidency Magistrate was satisfied that the same fulfilled the guiding principles laid down by the Courts for granting such pardon and that the nature of the approver''s complicity and the degree of his culpability in relation to the offence and in relation to the co-accused or the nature of the evidence he was likely to give, did appear clearly therefrom.

Having heard the Learned Counsel appearing on behalf of the different parties and having considered the materials on record, I will now proceed to determine the points at issue. In support of his first contention, Mr. Mitra has submitted that the application for pardon u/s 337 of the Code of Criminal Procedure, as filed on behalf of the accused No. 2, is merely a paraphrase of the said section and does not disclose the ''need'' of the evidence of the accused No. 2 as an approver. Even the desire of the learned Magistrate to record the statements of. the accused for the purpose of disclosing such ''need'' was opposed by the prosecution and there was ultimately no petition by the prosecution to show as to what the accused No. 2 would say. The guiding principles enjoined in this behalf by the reported decisions have not been applied by the learned Magistrate, nullifying the ultimate order granting pardon. In this context, Mr. Mitra referred to the case of Lt. Commander Pascal Fernandes v. The State of Maharastra and Ors. (Supra) wherein Hidayatullah J. (as his Lordship then was) delivering the judgment of the Court observed that before the Court

acts to tender pardon he must, of course, know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity and the degree, of his culpability in relation to the offence and in relation to the co-accused.

. Mitra pinpointed the observations of the Supreme Court (Supra) that--

No procedure or action can be in the interests "of justice if it is prejudicial to an accused. There are also matters of public policy to consider.

Mr. Mitra further referred to the case of Kashinath Krishna Bapat v. State of Mysore and Anr. (Supra) wherein T.K. Tukol J. observed that

the exercise of the power to tender pardon rests on judicial discretion and the Magistrate or the Judge should proceed with great caution and on sufficient grounds, recognising the risk which the grant of a pardon involves of allowing an offender to escape just punishment at the expense of the other accused.

A further reference was made to an unreported decision of the Supreme Court in the case of M.M. Kochar v. Delhi Administration (Supra) dated September 16,1968, wherein Bachawat J. delivering the judgment of the Court observed in connection with Section 338 of the Code of Criminal Procedure that--

In the larger interests of the public, it is necessary to grant Subharwal the pardon asked for so that he may make full disclosure of the circumstances within his knowledge relating to the commission of the offence and the part played by the Appellant and Mundhra in the matter.

According to Mr. Mitra, these elements are not present in the instant case, and, therefore, the order passed by the learned Presidency Magistrate u/s 337 of the Code of Criminal Procedure has been bad in law and improper. The learned Advocate-General submits that the objection of Mr. Mitra is more technical than real and that the impugned order granting "pardon is quite warranted and tenable and is also expedient in the interests of justice. Mr. Deb distinguished the principles laid down by their Lordships of the Supreme Court in Lt, Commander Pascal Fernandes'' case (Supra) and submits that those are made in a different context and are at best obiter. According to the learned Advocate-General, Mr. Mitra''s arguments overlook the last part of the judgment and that the observations made in para. 14 and the first part of para. 15 refer to a different set of facts, viz. the duties of the Sessions Judge in a case where the prosecution did not originally associate itself with the prayer for pardon. I am unable to agree with this submission of the learned Advocate-General as it would unnecessarily circumscribe the illuminating observations of the Supreme Court made in this context. Those are not in any way obiter and, even if those were so, the same would have been binding on me. Upon ultimate analysis, however, I hold that the said guiding principles have been applied by the learned Presidency Magistrate to the facts of the present case, and he ultimately was satisfied on the materials available in the present case to hold ultimately that the accused''s testimony as an approver ''is likely to advance the interest of justice''. Each case must depend on its own facts and considering the guiding principles for granting pardon u/s 337, Code of Criminal Procedure, in the light of the facts of the present case, I hold that the order impugned is warranted and tenable and not de hors the provisions of Section 337, Code of Criminal Procedure. The first contention of Mr. Mitra therefore fails.

The second contention of Mr. Mitra that the accused No. 2 being the principal offender should not have been granted pardon prejudicing thereby the other accused, does not also stand on a better footing. There is no bar in law to the principal offender being granted pardon u/s 337 of the. Code of Criminal Procedure if the same be warranted by the facts and circumstances of the case. Each case, however, must depend on its own facts so that there may not be any ultimate prejudice.. In this context, a reference may be made to the terms of Section 337 of the Code of Criminal Procedure which is, inter alia, as follows:

with a view to obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence to the 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.

Moreover, in the instant case, as was rightly found by the learned Presidency Magistrate, it is not ascertainable for certain as to who is the principal offender relative to the offence amongst the different accused persons. The second contention of Mr. Mitra accordingly fails.

The third and last submission of Mr. Mitra that the impugned order granting pardon u/s 337 of the Code of Criminal Procedure is not maintainable in law because of the observations made by the learned Presidency Magistrate in the first part of the order, ruling out the ultimate findings arrived at by him at the end of the same, is not also ultimately sustainable. The observations arrived at by the learned Presidency Magistrate at the beginning are really not self-contradictory vis-�-vis the ultimate findings arrived at by the learned Presidency Magistrate inasmuch as the earlier findings centered round the application for pardon that was filed on behalf of the accused No. 2 on July 11, 1968. It is only in that context that the learned Magistrate stated that the same disclosed nothing specific to show the nature of the evidence the accused is likely to give nor the nature of his complicity nor the degree of his culpability in relation to the offence or in relation to every other person concerned. The learned Magistrate further observed that the learned lawyer for the prosecution was not very specific as to the nature of the evidence to be advanced by the approver. The learned Presidency Magistrate, however, did not rest there but proceeded to consider the statements, and documents on record applying thereto the guiding principles laid down in this behalf by the Courts, and ultimately on an appraisal of all these he arrived at the ultimate conclusion that it was expedient in the interests of justice that the application u/s 337 of the Code of Criminal Procedure should be allowed and the pardon prayed for should be tendered to the accused. After weighing the pros and cons as also the matters of public policy the learned Presidency Magistrate ultimately arrived at his findings granting pardon to the accused concerned u/s 337 of the Code of Criminal Procedure. It cannot, therefore, be contended that the findings so arrived at are apparently self-contradictory and do not do duty for an order passed u/s 337 of the Code prejudicing materially the other accused in the case. A further reference to the order that has been impugned would bring to light that the learned Magistrate has given anxious consideration to any purported prejudice being caused" to the accused persons by the ultimate order, and in that context he observed that the evidence of the approver must be corroborated by other independent and circumstantial evidence before the same could be relied upon for finally determining the guilt of the co-accused. In this connection, he further considered the, fact that by shutting grant of pardon to the approver in question the prosecution would be deprived of an opportunity to prove the case of conspiracy and the part of the other accused therein and that he finally allowed the prayer in the interests of justice and for a fair determination of the case. The learned Presidency Magistrate accordingly appears to have exercised his discretion in a judicial manner and the satisfaction so arrived at by him should not be interfered with by this Court sitting in revision. So the third and last submission of Mr. Mitra also fails.

The learned Advocate-General in this context raises another point, viz. that such orders passed u/s 337 of the Code of Criminal Procedure by the Court below are not revisable by the High Court under Sections 435 and 439 of the Code of Criminal Procedure. There are undoubtedly some cases in support of this view, A reference may be made to the case of In Re: R. Akbar Sheriff, wherein Rajamannar J. observed:

I do not think that the act of the Magistrate u/s 337, Criminal P.C., namely, tendering pardon to a person, is revisable by the Court.

In a recent decision, namely, in the case of M.M. Kochar Vs. The State, S.N. Andley J. observed:

Even though such Magistrate is required by Sub-section (1A) of Section 337 to record his reasons for tendering a pardon it cannot be argued that such tender would become revisable by the High Court u/s 435 of the Code of Criminal Procedure if it is made at the stage of investigation or enquiry.

It was further observed (5):

I am, therefore, of the opinion that the power exercised by the Sessions Judge u/s 338 is also an executive power and is not a judicial power which is revisable by the High Court u/s 435 of the Code of Criminal Procedure.

A reference again may be made to the unreported decision of the Supreme Court in the case of M.M. Kochar v. Delhi Administration (Supra) dated September 16,1968, wherein however, Bachawat J. delivering the judgment of the Court ultimately observed:

We do not find it necessary to decide in this case whether an order u/s 338 is revisable by the High Court

In the present Rule also the learned Advocate-General has not ultimately pressed the point as not necessary in the back-drop of the facts of the case. I, accordingly, do not consider it necessary to decide the said question which is to abide determination in a fit and proper case.

Before I part with the case, I must observe that both the Learned Counsel appearing on behalf of the respective parties placed their cases very ably, and I further hold that the point raised by Mr. Anil Chandra Mitra is not only an intriguing one but is also tenable as a proposition of law simpliciter. No point of law, however, can remain suspended in the air bereft of the context of facts. The facts and circumstances of the present case clearly reveal that the learned Presidency Magistrate had the said guiding principles in view and applied the same to the facts of the present case before arriving at his ultimate findings. The kingpin of the provisions u/s 337 of the Code of Criminal Procedure is the satisfaction of the Court granting pardon and, so long as it is judicially exercised in the light of the guiding principles laid down by the Courts from time to time in this behalf, it will be neither legal nor proper for this Court sitting in revision to interfere with the same. It is quite true as the Supreme Court has observed in Lt. Commander Pascal Fernandes'' case (1) that--

No procedure or action can be in the interest of justice if it is prejudicial to an accused.

I respectfully agree with the same. The Supreme Court, however, has placed the interests of the accused only on a par with that of the prosecution and it is pertinent here to refer to the observations of Hidayatullah J. (as his Lordship then was) while delivering the judgment of the Court in Lt. Commander Pascal Fernandes'' case (Supra) that--

Here the interests of the accused are just as important as those of the prosecution.

Such interests, therefore, co-exist and do not override each other. The prosecution and the defence are like the two prongs of a scissor cutting the cloth but not cutting each other. On a consideration of the materials available on record, in the light of the guiding principles referred to above, when the learned Presidency Magistrate felt that it was expedient to grant pardon to the particular accused, because the prosecution, ''needs'' the approver''s testimony, the same cannot be condemned as a procedure not in the interests of justice on the ground of purported prejudice to the accused. - Law may be good but justice is better and justice again is in accordance with law. On a consideration of the point at issue, in all its aspects, I find that the order passed by the learned Presidency Magistrate u/s 337 of the Code of Criminal Procedure is maintainable in law as well as on merits.

In the result, I discharge the Rule, uphold the order dated August 22, 1968, passed by Sri R.L. Mukherjee, Presidency Magistrate, Sixth Court, Calcutta, in Case No. G.R. 1802 of 1968, and I direct that the case shall go back to the Court below for being tried in accordance with law and expeditiously.

The records are to go down as early as possible.