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TMI Blog2013 (11) TMI 1810X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant alleged that the Delhi Zonal office of the Enforcement Directorate conducted a search at the office i.e. three shops at Hotel Maurya Sheraton, New Delhi and residential premise i.e. G-51, Lajpat Nagar III, New Delhi of one Subhash Chandra Barjatya on 1.1.1998. Respondent No. 1 was the Deputy Director incharge of Delhi Zone at the relevant time. B. During the searches, the officers of the ED seized a fax message (debit advice) from one of the shops of said Shri S.C. Barjatya, purportedly sent from Swiss Bank Corporation, Zurich, Switzerland. This fax message reflected a debit of US $ 150,000/- from the account of Royalle Foundation, Zurich, Switzerland in favour of one S.K. Kapoor, holder of account No. 022-9-608080, Hong Kong Shanghai Banking Corporation (HSBC), as per the advice of the customer i.e. Royalle Foundation. C. Shri S.C. Barjatya filed a complaint dated 4.1.1998 with Director Enforcement alleging that the fax message from Swiss Bank Corporation was a forged document and had been planted in his premises during the course of the search undertaken on 1.1.1998 in order to frame him. The complainant and his employee had been illegally detained on the said n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as still pending and therefore, hearing of his application seeking pardon be deferred and which was accordingly ordered. J. The learned Special Judge issued a Letter Rogatory dated 29.1.2001 to the competent judicial authority in Switzerland seeking certain information in respect of the transactions revealed by the said fax purported to be a forged and fabricated document. K. Respondent No. 2 filed an application dated 2.5.2001 for revival of the earlier application seeking pardon and making him an approver, though the reply to the Letter Rogatory was still awaited. However, the CBI filed its reply dated 3.5.2001 and submitted that the reply to the Letter Rogatory would be only corroborative in nature and would not have any effect in deciding the application filed by Respondent No. 2. L. Respondent No. 1 moved an application on 3.5.2001 claiming that he had a right to oppose the application filed by Respondent No. 2 seeking pardon. However, the said application was rejected by the learned Special Judge on the same day. The said order dated 3.5.2001 rejecting the application of Respondent No. 1 claiming the right to oppose the application filed by Respondent No. 2 was affir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roached the High Court and this Court moving various applications but did not succeed. Those orders had attained finality, however, were not taken note of by the High Court. The oral direction given by the Special Judge that the CBI should file the list of cases being investigated by different agencies involving Respondent No. 2 was not complied with. However, failure on part of the CBI to do so would not materially affect the decision of the Special Judge granting pardon and making Respondent No. 2 an approver. Granting pardon and making an accused approver is a matter between the court and the applicant accused. The co-accused has no right to be heard before any forum. Therefore, the impugned order is liable to be set aside. 4. Shri Maninder Singh, learned Counsel appearing on behalf of Respondent No. 2, has supported the case of the Appellant and adopted the submissions made by the learned ASG and further submitted that order granting pardon by the Special Judge did not require interference. The High Court erred in passing the impugned order. 5. Per contra, Shri Ram Jethmalani, learned senior Counsel appearing for Respondent No. 1 has opposed the appeal contending that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of Section 337 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'old Code') observing as under: The next question is whether the Special Judge acted with due propriety in his jurisdiction. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments particularly Rameshwar v. State of Rajasthan AIR 1952 SC 54; Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420; K. Hashim v. State of Tamil Nadu AIR 2005 SC 128; and Chandran v. State of Kerala AIR 2011 SC 1594 held that an accomplice is a competent witness and that conviction can rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime. The deposition of an accomplice in a crime who had not been made an accused and put to trial can be relied upon, however, his evidence is required to be considered with care and caution. Such a person is a competent witness as he deposes in the court after taking oath and there is no prohibition in law not to act upon his deposition without corroboration. 11. Section 114 Illustration (b) and Section 133 of the Indian Evidence Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. 12. In Jasbir Singh (supra) this Court dealt with the issue observing that the court while considering the application for tendering pardon is not to consider the possible weight of the approver's evidence even before it was given. The evidence of an approver does not differ from the evidence of any other witness except that the evidence of the approver is looked upon with more caution. The suspicion of such evidence may be removed and if the evidence of an approver is found to be trustworthy and acceptable, then the evidence might will be decisive in securing a conviction. Thus, the court while exercising such power should not assess the probative value of the possible evidence of the person seeking permission to become an approver in anticipation and wholly in the abstract. 13. The observations made in Lt. Commander Pascal Fernandes (supra) were sought to be construed by the learned ASG as requiring the court to indubitably agree to the tendering of pardon if the prosecution thinks that the tender of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of pardon. 17. No judgment had been brought to our notice wherein the aforesaid quoted portions of three-Judge Bench judgments in Lt. Commander Pascal Fernandes (supra) and Laxmipat Choraria (supra) had been taken into consideration. The trend has been that without making reference to the afore-mentioned observations in the aforesaid judgments, this Court has observed that the court while exercising the power to grant pardon need not examine the culpability of the accused seeking pardon. 18. The concept of public policy was explained by Lord Mansfield in Holmon v. Johnson (1775) 1 Cowp 341 observing that the principle of public policy is: ex dolo malo non oritur action. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the Plaintiffs own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. (See also: Kedar Nath Motani and Ors. v. Prahlad Rai and Ors. AIR 1960 SC 213). Public policy, though based on morality and its notions are inherently subjective, has apparently been referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. The Section deals with the disqualification from inheritance of a person who commits murder or abets commission of murder. The provision of the section provides for a statutory recognition to the Hindu Law whereunder the rule is applied not on the basis of text but upon the principle of justice, equity and good conscience. (Vide: Kenchava Kom Sanyellappa Hosmani and Anr. v. Girimallappa Channappa Somasagar AIR 1924 PC 209). The rule had been made applicable by all courts consistently including this Court as is evident from the judgment in Vallikannu v. R. Singaperumal and Anr. AIR 2005 SC 2587. 22. Once the immunity extends to the accused and the accused is made an approver, he stands discharged whereupon he seizes to be an accused and would be examined only as a witness unless the said privilege is revoked on violation of the condition of disclosing complete truth. [See: State (Delhi Admn.) v. Jagjit Singh AIR 1989 SC 598; and Jasbir Singh (supra)]. Thus, the illustration cited hereinabove quoting Section 25 of the Act 1956 reflects the policy of law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent by the High Court is concerned, we may state that he may not have a legal right to raise any grievance, particularly in view of the law laid down by this Court in Ranadhir Basu v. State of West Bengal AIR 2000 SC 908. However, the revisional powers under Section 397 read with Section 401 Code of Criminal Procedure can be exercised by the court suo motu, particularly to examine the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceeding of the inferior court. These two Sections in Code of Criminal Procedure do not create any right in the favour of the litigant but only empower/enable the High Court to see that justice is done in accordance with recognised principles of criminal jurisprudence. The grounds of interference may be, where the facts admitted or approved, do not disclose any offence or the court may interfere where the facts do not disclose any offence or where the material effects of the party are not considered or where judicial discretion is exercised arbitrarily or perversely. (See also: Everest Apartments Co-operative Housing Society Ltd., Bombay v. State of Maharashtra and Ors. AIR 1966 SC 14 ..... 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