Indrakumari vs State

A. Ramamurthi, J.—Petitioner/first accused in C.C.3 of 1998 on the file of learned XIII Additional Judge/Special Judge III, Chennai, has

preferred the revision aggrieved against the order passed in Crl.M.P. No. 502/99 dated 25.5.99.

The case in brief for the disposal of the revision is as follows:

The petitioner filed a petition u/s 319 of the Code of Criminal Procedure to take cognizance of the offences committed by S. Jagadeesan and issue

summons to him to face the trial and to proceed against him along with other accused and deal with him according to law. The respondent filed a

final report against the petitioner and five others after completing investigation in Crime No. 6/96. One S. Jagadeesan, Managing Director of

Tamilnadu Textiles Corporation and one V. Jayaraman, Former Chairman, Tamilnadu Textiles Corporation, Pollachi were named as accused. The

first information report was submitted in the Court of the Special Judge for Prevention of Corruption Act (hereinafter referred to as ''P.C. Act''),

Chennai Division. On 14.10.96 the respondent filed the final report before the Special Judge, Chennai, who was appointed u/s 3 of the P.C. Act.

The copies of the documents were also furnished to them u/s 207 Cr.P.C. The petitioner came to know that Thiru Jagadeesan, who had been

named in the First Information Report, was not shown as accused and instead three persons were shown as accused 4 to 6. The said Jagadeesan

was shown as the first witness for prosecution. The case was transferred to the file of Special Court. Copies of section 164 Cr.P.C. and statement

of Jagadeesan recorded by the learned XV Metropolitan Magistrate were also furnished. The III Special Judge framed charges against the

petitioner and others and is proceeding to record evidence. P.Ws. 1 to 3 were examined in chief on 3.2.99. The said Jagadeesan has committed

offences for which, the accused herein are facing trial. It is just and necessary to proceed against the said Jagadeesan also.

The tender of pardon granted to Thiru S. Jagadeesan by the learned III Metropolitan Magistrate, George Town, Madras u/s 306 Cr.P.C. is not

valid and hence, he could not be treated as an approver or accomplice or witness for the prosecution u/s 5(2) of P.C. Act, 1988, the power of

tender of pardon has been given to the Special Judge, who takes cognizance of the offences relating to corruption cases. The tender of pardon is

usually given on condition that the accomplice should make full and true disclosure of the whole of the circumstances within his knowledge related

to the offences and to every other person concerned whether as principal or abettor, in commission thereof. Such a condition is mandatory u/s 306

Cr.P.C He did not undertake to comply with the conditions and did not say that he would make full and true disclosure during trial. The

accomplice ought to have been kept in custody till the disposal of the trial, but he has been released on bail now. He is the main accused in the

case and as such, he could not be examined as witness for the prosecution and he should be arrayed as an accused. There is sufficient evidence

indicating his involvement as main accused and hence, the petition.

The respondent filed counter, stating that final report has been filed against the petitioner and others for offences punishable under sections 120-

B, 409, 409 read with 109. 466, 467, 475 and 506 (i) IPC and section 13(2) read with 13(l)(d) of P.C. Act, of 1988. During the course of

investigation, the prosecution filed an application before the Principal Sessions Judge and Special Judge, Chennai to record the statement of Thiru

S. Jagadeesan u/s 164 Cr.P.C. and to treat him as an approver in the above case. The Special Judge in his letter dated 9.8.96 directed the Chief

Metropolitan Magistrate. Egmore to nominate a Magistrate to record the statement of said Jagadeesan u/s 164 Cr.P.C. The learned XV

Metropolitan Magistrate. George Town was directed to record the statement and after observing the required legal formalities and ascertaining that

the statement was given voluntarily and without any compulsion. The learned XV Metropolitan Magistrate after satisfying himself, recorded the

statement on 23.8.96. Subsequently, he was produced before the III Metropolitan Magistrate. George Town on 9.10.96 and was accorded

conditional tender of pardon as per section 306 Cr.P.C. Section 306 (1) Cr.P.C. empowers the Chief Judicial Magistrate or Metropolitan

Magistrate to grant tender of pardon at any person to any stage of enquiry or trial. Subsection 2 of section 306 Cr.P.C. lays down that this section

applies to any offence triable by the Court of Special Judge appointed under the Criminal Law Amendment Act. After the P.C. Act 1988 came

into force, section 5 of the Act, gives power to accord tender of pardon on condition of his making a full and true disclosure. This power given to a

Special Judge does not take away the power given to a Magistrate u/s 306 Cr.P.C. but it is co-extensive to the power of a Magistrate. The

question regarding the concurrent powers of a Magistrate and the Special Judge to tender pardon was discussed in Kashinath Krishnasapet vs.

The State of Mysore reported in 1963 Crl.L.J. 597. It was held that the Magistrate has got powers to tender pardon if the particular case was not

before a Special Judge.

Reliance was also placed upon in State of U.P. Vs. Kailash Nath Agarwal and Others, . In this case, the tender of pardon to the approver

Jagadeesan was given pending investigation of this case and before any final report was filed before the Special Judge. There are absolutely no

irregularities in the proceeding of the tender of pardon. Various persons have accepted the tender of pardon at the stage of investigation, the

prosecution can file the final report either before the Magistrate or before the Special Judge, having power to try the offence. Even assuming

without conceding that the tender of pardon by the Magistrate other than a Special Judge, without jurisdiction, it is only a curable defect as

reported in State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, . The learned III Metropolitan Magistrate was also fully

satisfied that the approver accepted the tender of pardon and agreed to comply with the conditions. It is stated in the order that the approver is in

the prison and will continue to remain there. The approver was subsequently enlarged on bail by this Court on 24.1.1997 in Crl.M.P. No.

1094/96. There are number of judicial pronouncements to the effect that the approver may be enlarged on bail by the High Court if there are

sufficient reasons for the same. The Learned Magistrate had categorically stated that the evidence of the approver is sufficient, important and

necessary for the case and the Magistrate was convinced that the approver will make a full and true disclosure of the circumstances within his

knowledge relating to offence and relating to the other accused in the case. The contention of the petitioner is devoid of merit. This petition has

been filed only to protract the trial. According to Section IV of P.C. Act the trial has to go, on day-to-day basis.

The learned Special Judge III after hearing both sides, dismissed the petition and aggrieved against this, the petitioner has come forward with the

present revision.

Heard the learned counsel of both sides.

Learned Senior counsel Thiru. B. Sriramulu contended that the trial court has erred in holding that the tender of pardon given to the approver

Thiru. Jagadeesan by Metropolitan Magistrate is not illegal. Section 5 (2) of P.C. Act, 1988 gives the power to tender of pardon to the Special

Judge, who takes cognizance of the offences. The power of tender of pardon cannot be delegated by the Special Judge to the Metropolitan

Magistrate. Section 306(2) Cr.P.C. cannot be invoked by the Magistrate for tendering pardon. In a corruption case after the enactment of P.C.

Act, 1988 which has repealed the P.C. Act, 1947, the Criminal Law Amendment Act, 1952 has been repealed by the P.C. Act, 1988. If the

Metropolitan Magistrate is empowered to tender pardon for an offence under P.C. Act, he has to commit the case only after examining approver

at the Committal Forum. The proceedings are ab initio void before the Special Judge.

Learned Public Prosecutor appearing on behalf of the respondent contended that although section 5(2) gives the power to tender pardon to

Special Judge, there is a concurrent power also given to the Metropolitan Magistrate u/s 306 Cr.P.C. to give a tender of pardon. There is no

illegality in the grant of tender of pardon. Even assuming but not conceding that only the Special Judge is competent to give the tender of pardon

u/s 5(2), it is only a curable irregularity, u/s 460 (g) of Cr.P.C. Moreover, the notification for constitution of the Special Courts was issued only on

30.4.97, whereas the tender of pardon was given by the III Metropolitan Magistrate on 9.10.96. The final report has been filed by the respondent

on 14.10.96 and the same was taken on file on 15.10.96. Copies were given to all the accused on 5.11.96 and now only after a period of 2-1/2

years, the petitioner has come forward with this application questioning the legality of tender of pardon and as such, this petition has been filed only

to protract the proceedings-of the case. u/s 4 of P.C. Act, the trial has to go on day to day basis.

Learned Senior counsel for the petitioner mainly contended that the Criminal Law Amendment Act, 1952 has been repealed by Section 30 of

the P.C. Act, 1988. Section 30(1) reads as follows:

The Prevention of Corruption Act, 1947 and the. Criminal Law Amendment Act, 1952 are hereby repealed.

Learned Senior counsel further relied upon section 5 of the P.C. Act and relied upon sub clause (1) and (2), which reads as follows:

(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall

follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.

(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy

to, an offence, 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 and any pardon

so tendered shall, for the purposes of sub-sections (1) to 5 of section 308 of the Code of Criminal Procedure, 1973 (2 of 1974) be deemed to

have been tendered u/s 307 of that Code.

Section 306 Cr.P.C. relates to tender of pardon to accomplice and sub clauses (1) and (2) which reads as follows:

(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 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 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.

(2) This section applies to

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act,

1952;

(b) Any offence punished with imprisonment which may extend to seven years or with a more severe sentence.

Section 307 relates to power to direct tender of pardon, which reads as follows:

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 pardon on

the same condition to such person.

Section 308 covers the trial of person not complying with conditions of pardon.

It is necessary to state that the language and the wordings employed u/s 8(1) and (2) of the Criminal Law-Amendment Act as well as section

5(1) and (2) of P.C. Act, 1988 and the language employed u/s 306 (1) and (2) Cr.P.C. are similar. The main contention now put forward by the

learned Senior Counsel for the petitioner is that when there is a specific provision under the P.C. Act, 1988 the Special Judge alone is empowered

to give a tender of pardon and as such, the tender of pardon now granted to the approver Thiru. S. Jagadeesan by the HI Metropolitan Magistrate

u/s 306 Cr.P.C. is ab initio void and as such, the approver has to be included as one of the accused in the case. I am of the view that there is no

basis in the contention of the learned senior counsel for the petitioner. A reading of the sections mentioned supra would go a long way to show that

the power granted u/s 306 Cr.P.C. as well as section 5(2) of P.C. Act is co-extensive and there is nothing to show mat the power given u/s 306

Cr.P.C. has been taken away in view of section 5(2) of P.C. Act. Further more, in this case. 164 Cr.P.C. statement of Thiru Jagadeesan was

recorded during the period of investigation and not after the final report. However, the language employed u/s 5(1) and (2) of P.C. Act if read

together would indicate that it relates to the tender of pardon given u/s 307 Cr.P.C. after commitment. The language employed u/s 306 Cr.P.C.

empowers the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or enquiry into, or trial of the offence...may

tender a pardon to such person on condition.... It is also made clear that this section applies to any offence triable exclusive by the Court of

Session and also any offence punished with imprisonment which may extend to seven years or more. On the other hand, section 5(1) of P.C. Act,

1988 indicates that the Special Judge may take cognizance of offences without the accused being committed to him for trial. Similarly, the language

employed u/s 5(2) of P.C. Act, in the end, it is stated as follows:

...any pardon so tendered shall, for the purpose of sub sections (1) to (5) of Sec. 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be

deemed to have been tendered u/s 307 of that Code.

By this, one can easily conclude that section 5(1) and (2) of P.C. Act is intended only on commitment of the case. As adverted to, section 307

Cr.P.C. clearly states that at any time after the commitment of the case but before a judgment is passed. It is, therefore, evidently clear that what is

mentioned u/s 5(2) of P.C. Act relating to Section 307 Cr.P.C. can be made applicable only after the committal of the case. But, in the case on

hand, it is admitted that during the course of investigation, only 164 Cr.P.C. statement was recorded by tire learned XV Metropolitan Magistrate

and the condition of pardon was given by the learned III Metropolitan Magistrate after observing all the formalities in accordance with section 306

Cr.P.C. and there is no illegality or infirmity.

It is also necessary to consider section 28 of P.C. Act, which reads as follows:

Act to be in addition to any other law:

The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force and nothing contained herein

shall exempt any public servant from any proceeding which might, apart from this Act, be instituted against him.

This also would support the case of the learned Public Prosecutor.

Learned Public Prosecutor further contended that even assuming but not conceding that there is any irregularity in giving the tender of pardon

to the concerned person, it is only a curable irregularity and relied upon section 460(g) of Code of Criminal Procedure. It relates to irregularities

which do not vitiate proceedings. If any Magistrate not empowered by law to do any of the following things, namely:

(a) to (f)........

(g) to tender a pardon u/s 396 (h) and (i).....

erroneously in good faith does that thing, his proceeding shall not be set aside merely on the ground of his not being so empowered.

In my view, even assuming for arguments sake, there is some force in the contention of the petitioner, the proceedings shall not be set aside on this

ground alone.

Learned counsel for the petitioner relied on Maru Ram and Others Vs. Union of India (UOI) and Others, , wherein it is observed that ""if a

special or local law exists covering the same area, this latter law w ill be saved and will prevail. The short sentencing measures and remission

schemes promulgated by the various States are special and local laws and must override...If mere is a specific provision to the contrary, then that

will override the special or local law"". Evidently, this decision has no application to the case on hand, in view of the language employed u/s 5 of

P.C. Act as well as section 306 Cr.P.C. if read along with section 28 of the P.C. Act.

Learned counsel for the petitioner also relied on A. Deivendran Vs. State of T.N., and stated that it cannot be said that even u/s 307 after

commitment of a case a Chief Judicial Magistrate retains the power to grant pardon. Once a case is committed to the Court of Session then it is

only that Court to which the proceedings have been committed can tender pardon to a person and the Chief Judicial Magistrate cannot be said to

have concurrent jurisdiction for tendering pardon. In the very same decision, it is stated as follows:

A Magistrate who was not empowered u/s 306 to tender pardon but actually tenders pardon in good faith erroneously then such an irregularity

would be curable. Section 460 can have no reference to an act of a Magistrate who is empowered u/s 306 but does not possess the jurisdiction

after an order of commitment is passed.

There is no dispute about this proposition and as adverted to, after the commitment of a case, naturally the Special Judge alone is competent to

give a tender of pardon. Now, in the case on hand, before filing of the final report, the tender of pardon has been given by the Metropolitan

Magistrate in accordance with the power given u/s 306 Cr.P.C.

Learned Public Prosecutor relied on Kanta Prashad vs. Delhi Administration (AIR 1950 SC 350), wherein it is observed that the provisions of

section 337 enable District Magistrate to tender a pardon in the case of any offence triable exclusively by the High Court or a Court of Session.

But although a Special Judge is a Court constituted under the Criminal Law Amendment Act, 1952, yet, for the purposes of the Code of Criminal

Procedure and that Act, it is a Court of Session. Accordingly although the offence u/s 5(2) P.C. Act, is triable exclusively by the Court of the

Special Judge, the District Magistrate has authority to tender a pardon u/s 337 Cr.P.C. as the Court of the Special Judge is in law, a Court of

Session. It is also stated that the conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a

pardon u/s 337 of the Code. Similar view has also been reiterated in State of U.P. Vs. Kailash Nath Agarwal and Others, , wherein it is observed

that ""The power conferred by Section 337 (1) on the different classes of Magistrate is concurrent and of the same character. The power to tender

pardon can be exercised by every one of the authorities mentioned therein subject to the limitation specified in the section itself.... It will be noted

that the emphasis is laid on the fact that the proviso to Section 337 contemplates concurrent jurisdiction in the District Magistrate and in the

Magistrate making an inquiry or holding the trial to tender pardon"". The aforesaid decisions are applicable to the case on hand in all fours.

There is absolutely no force in the contention of the learned counsel for the petitioner that only a Special Judge is competent to give a tender of

pardon even during the time of investigation in the case. The rulings cited supra and also the language employed in the various sections of the Code

of Criminal Procedure and Prevention of Corruption Act, 1988, will clearly establish beyond any shadow of doubt that section 5 (2) of P.C. Act is

equated to section 307 Cr.P.C. i.e. applicable only after commitment of the case and before the judgment is pronounced. On the other hand, the

power u/s 306 Cr.P.C. is wide enough to empower not only the Chief Judicial Magistrate but also the other Metropolitan Magistrate and other

Magistrates in connection with a case triable exclusively by the Sessions Court and also wherein the punishment is seven years and more. There is

no dispute that the notification relating to the Constitution of Special Courts was published on 30.4.97 and the tender of pardon was given even

before that i.e. on 9.10.96. The trial court has also rightly considered the rival contentions of the parties and came to the conclusion that the tender

of pardon given by the Metropolitan Magistrate during the course of investigation is proper and correct. Learned senior counsel for the petitioner

further stated that the approver has come out on bail, but the bail was granted only by this Court on 24.1.97 as per the order in Crl.M.P. No.

1094/96. If and when the approver has not adhered to the conditions at the time of tendering the pardon, then naturally appropriate proceedings

will be taken in accordance with section 308 Cr.P.C. and it is too early to consider such a situation. In the present case, already P.Ws. 1 to 3

were examined in part and the copies were given as early as November. 1996 but only in the year 1999, the application has been filed questioning

the legality of the tender of pardon and considering the lapse of three years, one can easily visualise that it is only an after thought and the attempt

on the part of the petitioner to delay the trial of the case.

For the reason stated above, the revision fails and is dismissed. Consequently, Crl.M.P. No. 4912 of 1999 is also dismissed.