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TMI Blog1967 (9) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... this and in diverse ways the Naval Dockyard Authorities were cheated to the tune of ₹ 3,65,000 and odd. Among the array of the accused in the case are three contractors (accused Nos. 5, 6 and 7) and their servant (accused No. 8), and four Government servants of whom accused No. 1 is the appellant before us. Of the remaining three Government servants, accused No. 4 (M. M. Jagasia) was an Upper Division Clerk working as Office Supdt., at the material time drawing a salary of ₹ 200 per month. Against Jagasia there is yet another charge, namely, that he is in possession of property disproportionate to his known sources of income which fact, if proved, is likely to lead to a presumption under the Prevention of Corruption Act. Evidence has already been accumulated, which is calculated to show that he is in possession of three motor cars, a building valued at ₹ 28,000 and odd and currency notes in a locker of the value of ₹ 16,400 in addition to gold and other ornaments and his bank balance. 2. The case appears to have been previously before Mr. R.K. Joshi, Special Judge, Greater Bombay and he framed charges against the accused in the case, on the basis of mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opportunity of having the evidence of an approver, through tender of conditional pardon to Jagasia. The High Court, after hearing the arguments, passed the order, now under appeal, upholding the tender of conditional offer of pardon to Jagasia. 5. In this appeal Mr. J. C. Bhatt contends that the powers of the Special Judge in tendering conditional pardon under s. 8(2) of the Criminal Law Amendment Act are limited an application by the prosecution in that behalf and the Special Judge cannot act suo motu without being invited by the prosecution to consider the tender of pardon to one of the accused before him. Mr. A. K. Sen in supplementing the arguments on behalf of one of the respondent co-accused further urged that the powers of the Special Judge in securing additional evidence are circumscribed by considerations that underlie s. 540 of the Code and therefore he can act in the interests of justice only and not with a view to granting an acquittal to one of the accused so as to be able to convict another. Both the learned counsel also urge that in the present case the discretion, if any, vested in the Special Judge under s. 8(2) of the Criminal Law Amendment Act has not been j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered under section 338 of that Code. (3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special judge; and for the purposes of the said provisions, the court of the special judge shall be deemed to be a court of session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special judge shall be deemed to be a public prosecutor. (4) . . . . . . ). The second sub-section necessarily differs in some respects from the provisions of the Code because the procedure of trial before the Special Judge is different, but on the tender of pardon by the Special Judge the provisions of Sections 339 and 339A of the Code apply. The tender of pardon by the Special Judge is deemed by fiction to be one tendered under s. 338 of the Code for purposes of sections 339 and 339A. That section is set out below ( 338. Power to direct tender of pardon - At any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case, and they are available to him throughout the trial. No conclusion such as is suggested by counsel can be drawn. 9. We may now proceed to consider the differences between s. 337 and s. 8(2). To do this we must look at some sections of the Criminal Law Amendment Act. Special Judges are appointed by the State Governments under s. 6 of the Criminal Law Amendment Act to try the following offences, namely :- (a) an offence punishable under s. 161, section 165 or section 165A of the Indian Penal Code (Act XLV of 1860) or sub-section (2) of sub-section 5 of the Prevention of Corruption Act, 1947 (II of 1947); (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a). 10. Sub-section (1) of s. 337 provides that in the case of an offence triable exclusively by the High Court or Court of Session or any offence punishable with imprisonment which may extend to seven years or any offence under Sections 161, 165, 165A.... the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into or trial of the offence, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of s. 337(1) of the Code of Criminal Procedure apply at the stage of investigation or inquiry. If any Magistrate therein mentioned tenders pardon and the person who is tendered pardon is examined under sub-section (2), the Magistrate must, without making any further inquiry, send the case to the Special Judge, if the offence is one of those mentioned in sub-section (2B) above set out. In other words, just as under sub-section (2A) the Magistrate has no option but to commit the accused to the Court of Session or the High Court, under sub-section (2B). He has no option but to stop further inquiry and send the case to the Special Judge. When the case is before that Special Judge the tender of pardon can only be by the Special Judge and it is deemed to be one under s. 338 for purposes of s. 339 and 339A as explained above. The fiction is necessary because no committal proceeding is necessary before a case is sent to a Special Judge. The words underlined by us in s. 337(1) cannot apply to tender of pardon by Special Judges as some of the words of s. 338 do not apply to them. 12. It follows that the powers of the Special Judge are not circumscribed by any condition except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction. Here the interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused. There are also matters of public policy to consider. Before the Special Judge 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. What is meant by public policy is illustrated by a case from Dublin Commission Court (Reg v. Robert Dunne, 5 Cox Cr. cases 507) in which Torrens, J. on behalf of himself and Perrin, J. observed as follows :- From what I can see of this case, this witness Bryan, who has been admitted as an approver by the Crown is much the more criminal of the two on his own showing..... I regret that this witness, Bryan, has been admitted as evidence for the Crown and thus escaped being placed upon his trial. It is the duty of magistrates to be very cautious as to whom they admit to give evidence as approvers, and they should carefully inquire to what extent the approver is mixed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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