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TMI Blog2011 (11) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30.8.2010. The main argument by the appellant in this case is that pardon could not be granted by the Special Court prior to the filing of the charge-sheet. 4. Certain facts which are relevant to decide this controversy may be recorded. 5. On 21.4.2005 the confessional statement of the Respondent No. 2 was recorded under Section 164 Code of Criminal Procedure. The said confessional statement of Respondent No. 2 recorded his involvement and the involvement of the Appellant in the incident. On considering the said statement, the prosecution formed an opinion that the evidence of PW-2 is of great value to the prosecution and thereafter on 3.7.2006 the prosecution moved an application before the Court of the Special Judge for grant of pardon to Respondent No. 2 so that Respondent No. 2 could be examined as an approver in the case against the Appellant. 6. Thereafter, by an order dated 17.7.2006, pardon was granted by the Special Court. 7. Mr. Sunil Kumar, learned Counsel for the Appellant mainly assailed the order granting pardon, inter- alia, on the ground that the Special Court has no jurisdiction and authority to do so before the filing of the charge sheet. 8. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,- (a) commit it for trial- (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. 307. Power to direct tender of pardon. 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 a pardon on the same condition to such person. Section 5(2) of P.C. Act: Section 5(2) A special Judge may, with a view to obtaining the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence: Provided that such person shall not be tried jointly with any of the other accused: Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or Section 340 shall apply to that offence. (2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a Court under Sub-section (4) of section 306 may be given in evidence against him at such trial. (3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made, in which case it shall be for the prosecution to prove that the condition has no been complied with. (4) At such trial, the Court shall- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh 1963 : AIR 1964 SC 358 (para 8 at page 361 of the report) in order to contend that the principles in Taylor v. Taylor (1876) 1 Ch. D. 426 must be followed in the instant case. The said principle stipulates that where a statute required the doing of a certain thing in a certain way, the thing must be done in that way or not at all. 20. Learned counsel also referred to the decision in the case of Queen Empress v. Batera and Ors. reported in Criminal Judgments No. 3 (Case No. 2838 of 1897) where the Court held that provision of Section 337 of the old Code must be strictly construed. 21. We are unable to appreciate the aforesaid contentions raised by the learned counsel. It goes without saying that under Section 5(2) of the P.C. Act the power of the Special Judge to grant pardon is an unfettered power subject to stipulation made in the Section itself. Such power can be exercised at any stage and there is no stipulation that power can be exercised by the Special Judge only at the stage of trial as urged by the Appellant's counsel. The deeming clause which has been introduced in Section 5(2) is for a very limited purpose mentioned in Section 5(2) of the P.C. Act. Sub-Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is manifest from the text of Section 5(2), namely, the same is introduced only for the purposes of Sub-Sections 1 to 5 of Section 308 of the Code and it is only for the said purpose that the sanction is deemed to have been tendered under Section 307 of the Code. 26. If this Court accepts the contention of learned counsel for the Appellant that the Special Judge under the P.C. Act has no power to grant the pardon under Section 306 of the Code in view of the deeming clause under Section 5(2) of the P.C. Act, that will amount to reading Section 5(2) of P.C. Act in a manner which is revolting to reason and by doing violence to the plain words of the statutes. 27. The contention of the learned counsel for the appellant cannot be accepted for other reasons also which are discussed hereinbelow. 28. The decision in Pascal (supra) was rendered on an interpretation of Section 8(2) of Criminal Law Amendment Act, 1952. is set out below: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Special Judge under Section 8 (2) are circumscribed by considerations under Section 540 of the old Code and (d) the further contention was that Special Judge had not exercised his discretion properly in the case. 32. None of the above considerations are relevant in the present case. Therefore, the said decision does not render any assistance to the Appellant in connection with the points which have been urged on his behalf. 33. The learned counsel for the State relied on a three Judge Bench decision of this Court in the case of Harshad S. Mehta and Ors. v. State of Maharashtra reported in (2001) 8 SCC 257. In the case of Harshad Mehta (supra) this Court was considering the Special Court (Trial of Offences Relating to Transactions in Securities) Act and it is admitted that the Court under the aforesaid Act is like the Special Court under P.C. Act. Both are Courts of Original Criminal Jurisdiction. In paragraph 21 of the judgment in Harshad Mehta (supra) this Court held as follows: 21. We have no difficulty in accepting the contention that the Special Court, per se, is not a Magistrate falling in any of the categories of Magistrates as enumerated in Section 306( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, it is clear that the power to grant pardon under Section 306 of the Code has not been specifically denied. If it is not specifically denied, then as a court of original criminal jurisdiction the Special Court under P.C. Act has the power to grant pardon under Section 306 of the present Code. Any different interpretation will be contrary to the plain words of Section 306 of the Code and also the law laid down by this Court in Harshad Mehta (supra) on the principles decided in Antulay (supra). 40. Reference in this connection can also be made to the decision of the Supreme Court in the case of State of Tamil Nadu v. V. Krishnaswami Naidu and Anr., reported in (1979) 4 SCC 5. In that case the question was whether the Special Judge has the power of remand. This Court, by referring to Section 3(32) of the General Clauses Act, 1897 defining a Magistrate, held that Magistrate will include a Special Judge. Therefore, a Special Judge shall be a Magistrate for the purposes of Section 167 of the Code even though the word 'Special Judge' is not mentioned in Section 167 (see para 7, pg. 8 of the report). 41. It is therefore clear that, on the ratio of V. Krishnaswami (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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