Veena B.C. W/o A. Sreenath Vs The State of Karnataka,

Heard learned counsel for the petitioners and learned counsel for the respondent Nos.1 and 2.

Perused the records.

The petitioners, who are arrayed as accused

Nos.7 and 9 in Spl.C.C.No.137/2014 on the file of XXI

Additional City Civil and Sessions Judge and Principal

Special Judge for CBI cases, Bangalore, filed an

application under Section 307 of Cr.P.C. dated

10.10.2014 in treating respondent No.2/accused No.8

as an approver and recording his statement made by

the Court under Section 164 of Cr.P.C.

Learned counsel for the petitioners

submitted that, the order of the trial Court mainly

discloses that the tender of pardon was given to

respondent No.2/accused No.8 only for the purpose of

extracting materials against accused Nos.3 and 5.

However, during the course of statement given by

accused No.8, he has implicated not only himself but

also accused Nos.7 and 9. Therefore, the said tender of

pardon and also collecting materials against accused

Nos.7 and 9 is bad-in-law. Therefore, the said order

requires to be quashed.

The learned counsel for the petitioners'', also

relied upon the decision of Apex Court reported in

(2013) 15 Supreme Court Cases 222 between

Central Bureau of Investigation and Ashok Kumar

Aggarwal and another wherein, the Apex Court while

considering that the right of co-accused to challenge the

order under sections 306, 397, 401 and 482 of Cr.P.C.

has held that, co-accused has no legal right to raise any

grievance against order granting pardon under Section

306 of Cr.P.C. However, Court can exercise its revisional

powers under Sections 397 and 401 of Cr.P.C. suo-moto

examine validity of any such order. High Court in the

present case examined validity of order granting pardon

under Section 306 by invoking its inherent powers under

Section 482 of Cr.P.C. and quashed the order as the

same was passed without considering relevant

materials.

Even accepting the above such observation

made by the Apex Court, the co-accused gets absolutely

no right of audience before the Court. The Court can

utmost treat the petition filed by the petitioner without

right of audience as suo-moto revision in order to

examine the procedural irregularity or illegality, if any,

committed by the Court while granting pardon. Even

otherwise, under Section 397 and 401 of Cr.P.C. and

even anybody bringing to the notice of the Court, if

otherwise the matter comes to the notice of the Court,

the Court can suo-moto take action and exercise the

powers of revision in order to set right any irregularity

or illegality committed by the Sub-ordinate Courts.

In this background, let me see, whether any

illegality is committed by the learned Sessions Judge in

granting tender of pardon to respondent No.2/accused

No.8. Even after reading Sections 306 and 307 of

Cr.P.C., it is the matter between the accused, who

wants to became an approver and it is the statutory

power of the Court to grant tender of pardon if the

accused complies with the requirements under

Sections 306 and 307 of Cr.P.C.

Sec.306 of Cr.P.C . contemplates the

procedure as to how and under what circumstance, the

Court can tender pardon. The Section 306 says,

"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 disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission of the offence."

This is the prime condition for the purpose of

tendering pardon. Therefore, if the Magistrate is

satisfied after recording the statement of such co-

accused for the purpose of tendering pardon to the

effect that said person has made a full and true

disclosure of the whole of the circumstances within his

knowledge relating to the offence and to every other

persons concerned, whether as principal or abettor in

the commission thereof.

The Magistrate or the trial Judge can tender

pardon by passing an appropriate order under Section

307 of Cr.P.C. In this particular case, as per the order of

the trial Court, the Trial Judge has recorded the

statement of the co-accused (accused No.8) under

Section 164 of Cr.P.C. and in fact, such statement was

recorded to certain extent by way of question and

answers in order to ascertain the veracity of said

witnesses and thereafter recording the entire statement,

the trial Court has come to the conclusion that accused

No.8 has given true facts of the case pertaining to an

offence and all the persons, who are involved in the said

case including present petitioners. Again truth or falsity

of such statement has to be tested at the time of

evidence.

The statement also discloses that accused

No.8 has inculpated himself and other accused persons.

According to his knowledge, he has disclosed that those

persons are also involved in commission of the offence.

Therefore, there is a compliance of Sec.306 of Cr.P.C .

The learned Sessions Judge has written a detailed order

wherein after examining the entire statement of

witnesses, he has recorded his satisfaction that the

accused has given fullest and true factual aspects with

regard to the offences. Therefore after satisfaction he

passed the impugned order. Therefore under the

aforesaid circumstances, I do not find any strong

reason to interfere with the said order either under

Section 397 or Section 401 or Section 482 of Cr.P.C.

It is made clear that under Section164 of

Cr.P.C ., the statement given by the accused is as good

as statement made by the person before the Court. The

said statement can only be used for the purpose of

contradicting the witness under Section 145 of the

Indian Evidence Act, during the course of evidence. For

any reason, if the said witness turns hostile before the

Court or gives any inconsistent evidence compared to

Section 164 of Cr.P.C., it cannot be used by any stretch

of imagination as a substantive evidence.

The accused/petitioners, if the accused

No.8 who will become a prosecution witnesses, are

examined before the Court, are or entitle to cross-

examine the said witness. In this background, I do not

find any strong reasons to interfere with the petition. As

such, petition is devoid of merits and same is liable to

be dismissed.

Accordingly petition is dismissed. IA-2/2016 does

not survive for consideration as the matter is disposed

of on merits.