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TMI Blog2020 (6) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 308 (1) is concerned. The grounds, urged in the application of the petitioner, preferred before the learned Special Judge did not, therefore, make out a case for issuance of Certificate under Section 308 (1), by the Public Prosecutor. The learned Special Judge, therefore, rightly chose not to revoke the pardon extended to the respondent, on the basis of the said averments. One of the serious apprehensions, voiced by the learned ASG, was that, as a consequence of the impugned order of the learned Special Judge, the prosecution would be compelled to lead the evidence of the respondent, even after having found him to be an untrustworthy witness. This apprehension, in my view, cannot be said to rest on any sound factual, or legal, basis. Factually, the apprehension is unfounded, as the learned Special Judge has not rejected the application, of the petitioner, on merits, but has dismissed it as premature, as no statement, of the respondent-approver, was recorded during trial. Liberty has been reserved, even in the impugned order, with the petitioner, to move an appropriate application, at the appropriate stage. It cannot, therefore, be said that, by operation of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive para 21, whereof, reads thus: In view of my aforesaid discussion, I thus allow the application moved by accused/applicant Rajiv Saxena seeking pardon and to make him an approver subject to his making full and true disclosure of whole of the circumstances as are within his knowledge relating to the offence and to every other person concerned whether as an abettor or principal in the commission of offences being tried over here. 4. Sections 306 and 308 of the Cr PC read as under: 306. Tender of pardon to accomplice. (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 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 relative to the offence and to every other person concerned, whether as principal or ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 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 not been complied with. (4) At such trial, the Court shall (a) if it is a Court of Session, before the charge is read out and explained to the accused; (b) if it is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made. (5) If the accused does so plead, the Court shall record the plea and proceed with the trial and it shall, before passing judgment in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the tender of pardon granted vide order dated 25.03.2019. 4. That Rajiv Saxena has failed to disclose the full and true set of facts/circumstances in his knowledge and has wilfully concealed the true facts of the case. He has further given false evidence to hide his culpability in the case and also made selective disclosures to shield other Accused. He is also in touch with other Accused persons to derail the investigation. 5. That in light of the said facts and circumstances of the case, the tender of pardon granted to Rajiv Saxena be revoked by this Hon ble Court and he may be tried in accordance with law. 7. As the afore-extracted certificate, of the learned Special Counsel seeks to incorporate, therein, by reference, the grounds for revocation of the tender of pardon extended to the respondent, it becomes necessary to advert to the said grounds, as contained in the body of the application. The application, of the petitioner, sought revocation, of the pardon extended to him, on the ground that (i) the respondent had failed to provide, during investigation, various crucial documents, which were believed to be in his possession, or had provided incomple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court, is without any merit. 25. The application filed by ED is premature and is liable to be dismissed. The Enforcement Directorate may move appropriate application for revocation of pardon granted to respondent Rajiv Saxena, if so needed, at appropriate stage. (Emphasis supplied) 9. The present petition, at the instance of the Directorate of Enforcement (hereinafter referred to as Enforcement Directorate ), seeks quashing of the aforesaid order, dated 5th March, 2020, passed by the learned Special Judge. 10. As the issue involved is purely one of law, I had, vide my order dated 18th May, 2020, directed fixing of the present petition, for final disposal, without requiring any counter-affidavit, rejoinder, to be filed. Learned Counsel were requested to file brief written submissions, in support of the respective stances. Written submissions have, accordingly, been filed and Mr. Aman Lekhi, learned ASG, for the petitioner, and Mr. R. K. Handoo, learned counsel for the respondent, have been heard at considerable length. Rival Submissions 11. Mr. Lekhi, the learned ASG, endeavoured to submit that the learned Special Judge had completely misconstrued th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom pardon had been extended, was required to be recorded has, therefore, in the submission of the learned ASG, gone wrong on facts as well as in law. 13. The view of the learned Special Judge, as expressed in the impugned order, if accepted, would, learned ASG would seek to submit, do complete violence to Section 306 of the Cr PC, and would also reduce the certificate of the Public Prosecutor, to which Section 308 (1) accords pre-eminence, to a dead letter. 14. Learned ASG also sought to submit that the certificate, dated 18th October, 2019, of the learned Special Counsel (who, by virtue of Section 46 of the PMLA, is deemed to be a public prosecutor ) could not be faulted for being unreasoned. I do not deem it necessary to enter into this issue, as the said certificate as reproduced hereinabove invokes, by reference, the contents of the application preferred, by the petitioner, before the learned Special Judge for revocation of the pardon granted to the respondent, and the reasons, for seeking certain revocation, are set out, in exhaustive detail, in the application. It cannot, therefore, in my view, be sought to be contended that the certificate, dated 18th October, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his position, as the Public prosecutor has nothing to do with the investigative process, and his role stands limited to the proceedings before the Court. If, therefore, the Public Prosecutor certifies that the approver has wilfully concealed any essential fact, or tendered false evidence, that, Mr. Handoo submits, would have to be during the course of proceedings in the Court, and not during the investigative process. The Public Prosecutor cannot, submits Mr. Handoo, peep into the investigation, and relies, for the purpose, on R. Sarala v. T. S. Velu (2000) 4 SCC 459. The observation, of the learned Special Judge, in para 29 of the impugned order, to the effect that recording of the statement of the approver had necessarily to precede the application for revocation of pardon is, therefore, Mr. Handoo submits, unexceptionable, and, in fact, in accordance with the scheme of Sections 306 and 308 of the Cr PC. This position, submits Mr. Handoo, stands recognised in Jagjit Singh , as well as in State of Maharashtra v. Abu Salem Abdul Kayyum Ansari (2010) 10 SCC 179 and Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80. 18. Arguing in rejoinder, the learned ASG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul Kayyum Ansari, Jagjit Singh stood explained and clarified. The learned ASG also invited my attention to para 17 of the report in Abu Salem Abdul Kayyum Ansari4, and submits that the reference, in the said para, to the calling of the respondent as a witness, was because, in the facts of that case, the respondent had, in fact, been called as a witness. The Supreme Court did not, in the said para, according to the learned ASG, hold, as a principle of law, that the wilful concealment of essential facts, or giving false evidence, by the approver, had necessarily to be during the course of recording of his statement under Section 306 (4), after he had been granted pardon under Section 306 (1). In fact, submits the learned ASG, Section 306 was entirely irrelevant in the present case, which involved, essentially, the interpretation of Section 308. He contrasts the two provisions by pointing out that the primary role, in Section 306, was ascribed to the Court, whereas the main actor, in Section 308, was the Public Prosecutor. He submits that the learned Special Judge erred in ignoring the use of the words if any , in Section 306 (4) which, in his submission, are critical. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and has, thereby, failed to comply with the condition, subject to which pardon was granted to him. On such certificate being issued by the Public Prosecutor, the approver concerned becomes liable to be tried for the offence in respect of which he had, earlier, been granted pardon, as well as for any other offence, of which he appears to have been guilty, and for giving false evidence (with leave of the High Court), albeit separately from the other accused. At such trial, the approver-turned-accused shall be entitled to plead compliance, on his part, with the conditions of pardon. Any such plea, if advanced by the approver-turned-accused, would shift the onus, to the prosecution, to prove infraction, by the approver-turned-accused, of the conditions of pardon. In such a case, the Court trying the approver-turned-accused shall, before passing judgment, determine, in the first instance, whether the approver-turned-accused complied with the conditions of pardon. In case he did so, the approver-turned-accused is entitled to acquittal. 21. As the scheme, aforesaid, reveals itself, therefore, examination of the approver, under Section 306 (4) is, ex-facie, mandatory. Thereafter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof. (1A) Every Magistrate who tenders a pardon under Sub-section (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record : Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost. (2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. (2A) In every case where a person has accepted a tender or pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be. (2B) In every case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l relevant respects, in pari materia. That the law, as enunciated in the context of Sections 337 to 339 of the 1898 Cr PC would also apply, mutatis mutandis, to Sections 306 to 308 of the 1973 Cr PC, also stands recognized in Jagjit Singh and Abu Salem Abdul Kayyum Ansari. 24. Bipin Behari Sarkar , subjecting Sections 337 to 339 of the 1898 Cr PC to a close and searching scrutiny, holds thus (in para 7 of the report): Section 339(1) of the Code provides that where a pardon has been tendered under Section 337 or Section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender 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 . The proviso to this sub-section prohibits the trial of such person jointly with any of the other accused and that such person shall be entitled to plead at such trial that he had complied with the condition upon which such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , before his statement was recorded under Section 306 (4), Cr PC which is what the impugned order holds. 25. Various High Courts, in the context of the 1898 Cr PC, in fact, adopted the same view. As far back as in 1943, a learned Division Bench of the High Court of Sindh ruled, in Emperor v. Pir Imamshah AIR 1944 Sindh 184, thus: In our view, then, the tender of pardon having once been made by the District Magistrate and accepted by the accused, the tender of pardon could not be withdrawn as the District Magistrate withdrew it. The accused should be examined as a witness in accordance with the provisions of Section 337 (2), Cr PC, and it will be for the Public Prosecutor thereafter to consider whether the accused should or should not be prosecuted in accordance with the provisions of Section 339,Cr PC. (Emphasis supplied) 26. In re. Arusami Goundan, on which both learned Counsel before me rely, specifically holds, in para 17, thus: Let us examine the reason of the matter. Occasionally when grave offences are committed the law finds it necessary to enlist the assistance of some of the offenders in order that the rest may be brought to justice. This h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and accepted, the utmost good faith must be kept on both sides. (Italics and underscoring supplied) A reading of the above passages, from Arusami Goundan seems to reveal some degree of ambivalence, on the issue of whether it is necessary to examine the approver twice, first in the committing Court and, thereafter, in the Sessions Court. On the aspect that the obligation, to make full and true disclosure, could be cast on the approver only when he is lawfully called to tender evidence in court, be it before the committing court, or the Sessions Court, however, the decision appears to be clear and categorical. In fact, the Court clarifies that the very purpose of requiring examination, of the approver, to whom pardon has been tendered, is to examine whether he is conforming to the conditions of pardon, or not. 27. The same view stands reflected, in the context of the 1973 Cr PC, in the following passages, from the judgment of the High Court of Kerala in In re: Chief Judicial Magistrate 1988 Cri LJ 812 : 1987 (2) Crimes 647 (Ker.) (in which, significantly, the Court was concerned with the propriety of the Magistrate examining the accused at the time of grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Italics and underscoring supplied) 28. The authorities, cited hereinabove, all indicate that examination, of the approver, under Section 306 (4) of the 1973 Cr PC [or Section 337 (2) of the 1898 Cr PC], is mandatory, has to precede issuance of certificate, by the Public Prosecutor under Section 308 (1) of the 1973 Cr PC [or Section 339 (1) of the 1898 Cr PC], and is intended to ascertain whether the approver has complied with the conditions of pardon, or has resorted to concealment of material fact, or tendering of false evidence. 29. I proceed, now, to advert to the three decisions, of the Supreme Court, on which, principally, arguments, before me, revolved, namely Jagjit Singh, Abu Salem Abdul Kayyum Ansari and Suresh Chandra Bahri . Reliance, on these decisions was, incidentally, placed by both the learned ASG, appearing for the petitioner, as well as Mr. Handoo, learned Counsel for the respondent. 30. The respondent Jagjit Singh, in Jagjit Singh , was granted pardon, under Section 306 of the Cr PC and, consequently, turned approver. He was, thereafter, examined as a prosecution witness in the committal case proceeding, on 24th December, 1985, when he resiled f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) of Section 306 of Code of Criminal Procedure clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. It is therefore, a mandate of the provisions of the said Act to the prosecution to examine the approver to whom pardon has been granted as a witness both in the Committing Court as well as in the trial court. It does not matter whether the approver has resiled from his statement and has not made a full and true disclosure of whole of the circumstances within his knowledge relating to the offence so long as the Public Prosecutor does not certify that in his opinion the approver has either wilfully concealed anything essential or has given false evidence contrary to the condition on which the tender of pardon was made. 8. It has been next contended that the grant of pardon is in the nature of a contract between the State granting the pardon on the one hand and the person accepting the pardon on the other hand. As the State has the power to revoke the pardon at any time the approver has also got the reciprocal right to cast away the pardon gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement, rendered by him, consequent to grant of pardon, he stood converted, ipso facto, into an accused, from an approver. Moreover, points out learned ASG, the Public Prosecutor, in Jagjit Singh , had not issued the requisite certificate under Section 308 (1) of the Cr PC. These two circumstances, in his submission, clearly distinguish the case, at hand, from Jagjit Singh . In relying, blindly, on Jagjit Singh , without taking stock of these two vitally distinguishing circumstances, the learned Special Judge has, contends the learned ASG, materially erred. 33. To the extent of his contention that, in respect of the above two circumstances, the facts in Jagjit Singh are different from those in the present case, I find myself in agreement with the learned ASG. However, these two distinguishing circumstances, by themselves, cannot, in my considered opinion, entirely erode the precedential worth of the pronouncement in Jagjit Singh, insofar as its applicability, to the case before me, is concerned. It is true that, at times, a single distinguishing fact, may affect, vitally, the applicability of an earlier pronouncement, as a precedent in a later case Gian Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny words, that the certificate of the Public Prosecutor, under Section 308 (1), has to be based on the evidence, recorded by the Committing Court, of the approver, a contextual reading of the observations of the Supreme Court indicate that the examination of the approver, as a witness, by the prosecution, as well as the certification, by the Public prosecutor, regarding non-compliance, by the approver, of the conditions of pardon, are both essential precursors, to trial of the approver, under Section 308, in respect of the offence for which pardon was granted as well as in respect of other offences in which he may be involved. 35. In Abu Salem Abdul Kayyum Ansari , Respondent No. 3, before the Supreme Court, was granted pardon, by the Sessions Court, under Section 307, Cr PC, and made an approver. He, thereafter, was examined as a witness in the trial, by the prosecution. During the course of such examination, the Public prosecutor realised that Respondent No. 3 was being economical with the truth. To a specific query as to whether he desired to inform the court regarding the conspiracy forming subject matter of the trial, the answer of Respondent No. 3 was in the negative. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rning the offence, or, by giving false evidence, fails to comply with the condition, subject to which pardon was tendered by him, the Public Prosecutor so certifies, under Section 308 (1), whereupon the approver becomes an accused, in respect of the offence for which pardon had been tendered to him, and any other offence, of which he appears to be guilty in connection with the same matter. He also becomes liable to be tried for the offence of giving false evidence, albeit with the sanction of the High Court. 38. The judgment in Abu Salem Abdul Kayyum Ansari goes on to reproduce para 7 of the report in Jagjit Singh , and return the following findings, in respect thereof (in para-21): The above statement of law in Jagjit Singh [1989 Supp (2) SCC 770 : 1990 SCC (Cri) 133] cannot be understood as laying down that an accomplice who has been tendered pardon and called as a witness for the prosecution must be continued to be examined as a prosecution witness although he has failed to comply with the condition on which the tender of pardon was made and a Public Prosecutor certifies that he has not complied with the condition on which the tender was made. As a matter of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , seized with the issue of whether such a procedure was permissible, and answered it, ultimately, in the affirmative (in paras 31 to 33 of the report). In the process of doing so, the Supreme Court, in para 30 of the report, returned the following findings which, in my opinion, practically clinch the controversy in issue before me: A bare reading of clause (a) of sub-section (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to any one of the courts mentioned in clauses (i) or (ii) of clause (a) of sub-section (5), as the case may be. Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that court. The examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial? (Italics and underscoring supplied) 40. Para 30 of the report in Suresh Chandra Bahri , therefore, holds that the examination of the approver, as witness, under Section 306 (4), Cr PC, serves two objectives, the first being to test whether the approver is abiding by his undertaking subject to which pardon was tendered to him to make a full and true disclosure of all facts within his knowledge, and provided true evidence in respect thereof, and the second, so as to enable the accused to point out any inconsistencies, between the said statement and the subsequent evidence, of the approver, during trial, if any. With the second objective, we are not particularly concerned, in the present case; the first, however, is pivotal to the issue in controversy, as the Supreme Court has clarified, yet again, that examination of the approver, as a witness under Section 306 (4) is intended, inter alia, to ascertain whether the approver is abiding by the conditions of his pardon, or is an untrustworthy witness. In the latter eventuality, no doubt, the Public Prosecutor would be in a position to so certify, under Section 308 (1), in which event the approver would revert to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Public Prosecutor, with the authority to issue certificate, under Section 308 (1), is also indicative of the fact that the concealment of essential facts, or tendering of false evidence, by the approver, has necessarily to relate to his evidence, as recorded during trial under Section 306 (4), and cannot relate to his conduct during investigation. Indeed, despite considerable research, I have been unable to come across a single instance, in any reported decision, in which the certificate of the Public Prosecutor, under Section 308 (1), is based on the conduct of the approver during investigation, or his response to queries put to him outside the Court. Nor has the learned ASG drawn my attention to any such decision, despite contending, emphatically, that Section 308 (1) did not specifically proscribe issuance of certificate, by the Public Prosecutor, regarding concealment of material fact, or giving false evidence by the accused-turned-approver, on the basis of the proceedings in investigation. 44. Any such interpretation, in my view, would run against the very grain of the scheme, statutorily engrafted in Sections 306 and 308 of the Cr PC. In my perception, a holistic, and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulted, in any manner, in rejecting the application, for revocation of pardon , as filed by the petitioner before him, as premature, as no evidence, of the approver, had been recorded under Section 306 (4), Cr PC. 47. I do not deem it necessary to examine the authority, of the Public Prosecutor, to peep into the investigation, and the evidence garnered therein. It is obviously not possible to hold that the Public Prosecutor should remain a stranger to the investigative process, which constitutes the terminus a quo, wherefrom the entire proceeding emanates. Suffice it, therefore, to state that the certificate, under Section 308 (1) of the Cr PC, to be issued by the Public Prosecutor, is required to be based on the examination, of the approver, under Section 306 (4), or any other evidence adduced by the approver during trial, whether prior to committal or thereafter. The certificate of the Public Prosecutor, issued in the present case, being based entirely on the alleged non-co-operation, by the respondent, during investigation, does not conform to the scheme of Section 306 and 308 of the Cr PC. It could not, therefore, constitute, legitimately, the sole basis to seek revocatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g officer. When, and where, does the Chief Judicial Magistrate, the Metropolitan Magistrate, or the Magistrate of the first class, obtain evidence? Obviously, and axiomatically, during trial. Section 306 (1) goes on to stipulate that pardon may be tendered, to the accomplice, on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge It is obvious that Section 306 (1) has to be read as a single provision, and that different parts of the provision cannot conflict with each other. Where the purpose of tendering pardon is obtaining of the evidence of the person, by, and before, the Court, the full and true disclosure , required to be made by the person, to whom pardon is being tendered, has also, necessarily, to be before the Court. The Chief Judicial Magistrate, or the Metropolitan Magistrate or the Magistrate of the first class, cannot be said to be obtaining evidence during the investigative process. Obtaining of evidence, by a court, is always before the court itself. Full and true disclosure by the approver, towards obtaining of such evidence, has also, therefore, to be before the court itself, and not during the investigative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 308 (1) is concerned. So long as the approver does not conceal anything essential before the Court, and does not give false evidence before the Court, no occasion, for issuance of any certificate, by the Public Prosecutor, under Section 308 (1), can be said to arise. The grounds, urged in the application of the petitioner, preferred before the learned Special Judge did not, therefore, make out a case for issuance of Certificate under Section 308 (1), by the Public Prosecutor. The learned Special Judge, therefore, rightly chose not to revoke the pardon extended to the respondent, on the basis of the said averments. 53. One of the serious apprehensions, voiced by the learned ASG, was that, as a consequence of the impugned order of the learned Special Judge, the prosecution would be compelled to lead the evidence of the respondent, even after having found him to be an untrustworthy witness. This apprehension, in my view, cannot be said to rest on any sound factual, or legal, basis. Factually, the apprehension is unfounded, as the learned Special Judge has not rejected the application, of the petitioner, on merits, but has dismissed it as premature, as no statement, of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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