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TMI Blog1973 (3) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... the Directors of M/s. M.K. Brothers (P) Ltd., Kanpur and were doing business in cotton in Kanpur. In the course of their business, they used to purchase cotton from out stations and sell them to the textile mills at Kanpur. The second respondent, Kesardeo Budhia, was an employee of M/s. M.K. Brothers (P) Ltd. and used to look after the work of taking delivery of cotton bales from the Kanpur railway station. The third respondent, Devi Prasad Agarwal, was a representative of J.K. Cotton Mills Kanpur. In 1958 the financial position of M.K. Brothers (P) Ltd. became very precarious and in consequence they committed considerable delay in clearing the consignments of cotton from the station premises and this resulted in their being liable for heavy arrears of demurrage and wharfage. 4. As the textile industry itself was facing a crisis in 1958, the Government, with a view to give some assistance, granted several concessions. One such was that the consignees, who had their own railway sidings, were granted remission in respect of demurrage and wharfage payable to the railway authorities. This enabled the consignees to take delivery of goods according to their convenience. In the said ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for the purpose of being satisfied that a prima facie case had been established. It was stressed that the direct evidence of conspiracy would be furnished by respondents 2 and 3 if they are granted pardon and examined as witnesses. Reference was also made to the effect that a request made by those accused for grant of pardon was rejected by the Magistrate enquiring into the offences. This application was opposed by respondents 1 and 4 to 6 on the ground that the District Magistrate has no power to grant pardon when once the enquiring Magistrate has declined a similar request. The District Magistrate rejected this contention and held that he had jurisdiction to consider the application on merits, notwithstanding the fact that the enquiring Magistrate had declined to grant pardon. On merits, the Magistrate held that in the circumstances it is enough if the second respondent, Kesardeo Budhia alone is tendered pardon. Accordingly, by his order dated June 1, 1966, he granted pardon under Section 337 to this accused alone on condition of his making a full and proper disclosure of the whole of the circumstances within his knowledge relating to the offences. 6. The first respondent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the District Magistrate was incompetent. (3) In any event, the grant of pardon by the District Magistrate is only an irregularity, which is cured by Clause (g) of Section 529 of the Criminal Procedure Code; and as such the High Court was in error in interfering with the said order. 9. Mr. B.P. Maheshwari, learned Counsel appearing for respondents 5 and 6, has supported the order of the High Court. According to him, the scheme of Section 337 clearly shows that the question of granting or refusing pardon has to be dealt with in the circumstance and by the officers referred to therein. When once that jurisdiction has been invoked before one officer, it cannot be reopened before another officer. The counsel contended that it may be that if fresh facts have come to light later and are placed before the court, it may have jurisdiction to reconsider an order passed at the early stage of proceedings. In this case, the State had not placed any material before the District Magistrate that was not already before the First Class Magistrate. That being so, the District Magistrate had no jurisdiction to consider on the same facts a second request made for the same purpose. Mr. Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistrate for some special reason thinks fit to furnish it free of cost. Power to direct tender of pardon. 338. 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 trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person. 11. Section 435(1) gives power to the High Court, the Sessions judge and to the other authorities mentioned therein to call for records of inferior courts for the purposes mentioned therein, Sub-section 4 provides that if an application under Section 435 has been made either to the Sessions Judge or the District Magistrate , no further application shall be entertained by the other of hem. Section 529 occurring in Chapter XLV under the heading Of irregular proceedings deals with irregularities which do not vitiate proceedings. The material part of this section relevant for the present purpose is as follows :- Irregularities which do not vitiate proceedings. 529. If an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Session, the District Magistrate had power to grant pardon. The contention that under such circumstances the proper authority to grant pardon was the Special Judge was rejected, as the position of the Special Judge was similar to that of a Judge of a court of Session. It was observed: The proviso to Section 337 of the CrPC contemplates concurrent jurisdiction in the District Magistrate and the Magistrate making an inquiry or holding the trial to tender a pardon. According to the provisions of Section 338 of the Code, even after commitment but before judgment is passed, the Court to which the commitment is made may tender a pardon or order the committing Magistrate or the District Magistrate to tender a pardon. It would seem, therefore, that the District Magistrate is empowered to tender a pardon even after a commitment if the Court so directs. Under Section 8(2) of the Criminal Law (Amendment) Act, 1952, the Special Judge has also been granted power to tender pardon. The conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a pardon under Section 337 of the Code. It will be noted from this decision that emphasis is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 one of the questions that came up for consideration was. whether a pardon granted under Section 337(1) by the Additional District Magistrate in a case, where an inquiry was pending before the District Magistrate, was illegal. It was contended that under Section 337 only the powers of a District Magistrate, namely, the powers under entry 7(a) in Part V of Schedule in of the CrPC, as distinguished from the power under the proviso to the said section, can be conferred upon an Additional District Magistrate. This Court, having regard to the order of Madras Government No. 3106 dated September 9, 1949, and entry 7 (a) in Part V of Schedule III, rejected this contention. It is the view of this Court that.: The power conferred by Sub-section (1) of Section 337 on the different clauses of Magistrates is of the same character. The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate. But entry 7 (a) in Part V of Schedule Ill when it refers to the power of a District Magistrate under Section 337(1) does not exclude the power under the proviso. 15. The decision referred to above clearly establish that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above so that the authorities under Sections 337 and 338 can exercise jurisdiction in harmony in order to further the interest of justice and avoid conflicting orders being passed. 17. The conferment of concurrent powers is also to be seen in Section 498. Under Sub-section 1, the High Court or court of Session has got power to direct that any person be admitted to bail or to reduce the bail required by a police officer or a Magistrate. Even though the Court of Session may have refused a request in this behalf for grant of bail, the High Court can be approached for a similar relief. Under Sub-section 2, again power has been given to the High Court or Court of Session to order the re-arrest of a person admitted to bail under Sub-section 1. 18. When the legislature intended that two authorities should not exercise jurisdiction on an identical matter, it has used appropriate language to that effect. For instance, under Section 436(1), the Sessions Judge and the District Magistrate, in addition to the High Court and Sub-divisional Magistrate, have been empowered to call for and examine the records of any proceedings before any inferior criminal court. Though it may appear from Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenging the order of the District Magistrate dated June 1, 1966. Section 435, which deals with the power to call for records of inferior courts, takes in the High Court, Sessions Judge, District Magistrate and any Sub-divisional Magistrate empowered by the State Government in that behalf. The power is given to call for and examine the records of any proceedings before any inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court.... In our opinion, an order granting pardon under Sections 337 or 338 is certainly an order recorded or passed and the revisional court has got jurisdiction to consider the correctness, legality or propriety of such an order. At any rate, tender of a pardon is certainly a proceeding of a criminal court. The revising authority can call for the records to satisfy itself as to the regularity of any proceedings of an inferior criminal court. It should also be noted that Sub-section 1A of Section 337 imposes an obligation on the Magistrate tendering pardon to record his reasons for so doing. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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