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ANKUR versus SUSHIL KUMAR & ORS

High Court of Punjab and Haryana, Chandigarh

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ANKUR v. SUSHIL KUMAR & Ors - CRR-1616-2004 [2005] RD-P&H 47 (13 July 2005)

Crl. Revision No. 1616 of 2004 ( 1 )

Ankur v. Sushil Kumar & Others

Present: Mr. Ashok Saini , Advocate for the petitioner/complainant.

Mrs. R.K Nihalsinghwala, DAG, Punjab.

Mr. Madan Sandhu, Advocate for Sushil Kumar respondent No.1.

Mr. J.S Chahal, Advocate for Shilpa respondent No.3.

* * *

SURYA KANT, J.

This revision petition has been directed against the order dated 13.7.2004 passed by the Additional Sessions Judge, Fast Track Court, Gurdaspur whereby two applications, moved by the complainant through the Public Prosecutor, namely, (i) to examine Shilpa, one of the accused as a prosecution witness who has since been `granted pardon' and/or; (ii) to send the case back to Ilaqa Magistrate , Pathankot for recording her statement have been rejected.

[2]. FIR No.5 dated 21.3.2001 was registered under Section 302/397/411/34 IPC at Police Station Dhar Kalan, District Gurdaspur. As per the allegations contained therein, the father of the complainant, Balwant Singh was kidnapped and, later on his dead body was found lying in his Zen Car bearing registration No.PB-10-AR 7732. There were many injury marks on the body.

[3]. It appears that during the course of investigation, one Shilpa and her two associates were suspected to be involved in the aforementioned crime Crl. Revision No. 1616 of 2004 ( 2 )

and were apprehended. While the case was at the pre-committal stage, Shilpa, one of the accused, moved an application dated 7.7.2001 for initiating proceedings to 'tender pardon' to her. After notice, the aforesaid application was accepted by the Additional Chief Judicial Magistrate, Gurdaspur, vide his order dated 11.7.2001 which reads as follows:

1. "Accused Shilpa has moved an application on 7.7.2001 before Judicial magistrate Ist Class, Pathankot that she will be happy if she is allowed to become an approver and her statement is recorded. She be tendered pardon.

Judicial magistrate Ist class, Pathankot, has sent the papers to this Court stating that the Chief Judicial Magistrate, Gurdaspur is competent for tendering pardon to the accused.

2. Then on the application of investigating officer accused was summoned from jail through production warrant.

Applicant and the investigating officer submitted that there is no alternative except tendering pardon to the present accused as she is the sole witness of another murder case in which Mangal Dass Bhatia was killed by other two accused persons. They further submitted that the present accused has been used as tool by two other accused Crl. Revision No. 1616 of 2004 ( 3 )

persons for committing the murder of Mangal Dass Bhatia and one Balwant. These two accused persons have also been arrested. It will be in the interest of justice that pardon be tendered to the accused and her statement be recorded.

3. I have enquired from the accused, who stated that two murders have been committed by other two accused persons in her presence. There is heavy burden on her mind. She intends to depose the whole true facts in the Court.

4. In the light of the above submissions of the applicant, investigating officer and the accused, I think that it is a fit case for granting pardon to accused Shilpa so that the investigating agency is able to complete the investigation in a proper manner. Accused has accepted the tender of pardon. Let her statement be recorded."

(emphasis applied)

[4]. On the same day, Shilpa also made a statement on oath which is recorded in Vernacular (Gurumukhi) (now Ex. P-15/A on the records of Ld.

Additional Sessions Judge). The case was, thereafter committed to the Court of Sessions in terms of Section 306(5) of the Criminal Procedure Code, 1973.

[5]. When the prosecution evidence was being led, the aforementioned Crl. Revision No. 1616 of 2004 ( 4 )

two applications i.e. to examine Shilpa as a `prosecution witness' and/or to send the case back to Ilaqa Magistrate, Pathankot, were moved by the complainant, however, the same were rejected by the learned Additional Sessions Judge on the premise that Shilpa was not declared `approver' by the learned Additional Chief Judicial Magistrate, Gurdaspur by following the prescribed procedure.

[6]. Aggrieved at the aforesaid order that the complainant has approached this Court through this revision petition in which passing of final order by the trial court was stayed on 2.9.2004.

[7]. Heard, learned counsel for the parties at length and perused the original records summoned from the Court of Additional Chief Judicial Magistrate, Gurdaspur vide order dated 8.7.2005.

[8]. In order to appreciate the controversy, it will be apposite to reproduce Section 306 of the Code of Criminal Procedure which reads as follows:-

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 Crl. Revision No. 1616 of 2004 ( 5 )

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 abettor, in the commission thereof.

(2) This section applies to -

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistratge who tenders a pardon under sub-section (1) shall record-

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to whom it was made,

and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub- section (1)-

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

Crl. Revision No. 1616 of 2004 ( 6 )

(b) shall, unless he is already on bail, be detained in custody 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." [9]. As is discernible from the plain language of Section 306, the Chief Judicial Magistrate at the stage of investigation, inquiry or trial of an offence is empowered to tender a pardon to a person who is supposed to have been directly or indirectly concerned with the offence with a view to obtain the evidence of such person. The pardon is to be tendered on the condition of making a full and true disclosure by such person of the whole of the circumstances within his knowledge in relation to the offence. The Magistrate Crl. Revision No. 1616 of 2004 ( 7 )

who tenders a pardon is required to record reasons for so doing and make a mention as to whether the tender was accepted or not by the person to whom it was made. If the person to whom pardon has been tendered, accepts the same, he shall be examined as a witness in the court of the learned Magistrate taking cognizance of the offence as well as in the subsequent trial, if any. He shall also be detained in custody unless already on bail. After the person concerned has accepted a tender of pardon and has also been examined as a witness under sub-section (4), the Magistrate, without making any further inquiry, is required to commit the case for trial to the court of Session if the offence is triable exclusively by that Court or to any other court of competent jurisdiction, as the case may be.

[10]. The question which requires determination in the present case is as to whether or not Shilpa one of the accused, has been 'tendered pardon' by the learned Additional Chief Judicial Magistrate, Gurdaspur and she has accepted the same as per the prescribed procedure so as to treat her as an 'approver'.

[11]. It is an admitted fact that Shilpa herself moved an application dated 7.7.2001 (Ex.PW21/F) for initiating proceedings to tender pardon to her. On this application, an order dated 7.7.2001 (Ex.PW21/G) was passed by the learned Judicial Magistrate First Class, Pathankot to put up the same before the learned Chief Judicial Magistrate, Gurdaspur. Thereafter, the learned Additional Chief Judicial Magistrate to whom the case was entrusted, passed the order dated 11.7.2001 which has already been reproduced in extenso. The aforesaid order Crl. Revision No. 1616 of 2004 ( 8 )

not only contains the reasons as to why pardon was required to be tendered to Shilpa, it also expressly recites that the above named accused "has accepted the tender of pardon". Similarly, Shilpa also made a statement on oath which was recorded and is now exhibited as PW.15/A in the records of learned Additional Sessions Judge. It was thereafter that the case was committed for trial to the Court of Session as the offence being under section 302 IPC, is triable exclusively by the Court of Session.

[12]. There remains, thus, absolutely no doubt that while passing the order dated 11.7.2001 granting pardon to Shilpa, all the pre-conditions envisaged by Section 306 Cr.P.C. were strictly adhered to by the learned Additional Chief Judicial Magistrate.

[13]. It appears that the proceedings taken out under Section 306 Cr.P.C. by the learned Additional Chief Judicial Magistrate, though were part of the record when the case was committed for trial, the same were not taken notice of and the trial was started by the learned Additional Sessions Judge on an assumption as if Shilpa was still an 'accused'. Even some of the prosecution witnesses were also examined under this very wrong notion.

[14]. At this stage, it may be pertinent to mention that when the two applications in question were moved by the complainant through the prosecution, a reply dated 2.4.2004 (Annexure P-3) was filed on behalf of Shilpa to one of such applications, the contents of which read as follows:-

1. That Shilpa accused was given pardon much before the starting Crl. Revision No. 1616 of 2004 ( 9 )

of the trial. Her statement u/s 164 Cr.P.C. was part of the records. Her trial along with other accused therefore is clearly illegal and has the force of vitiating the trial.

2. That since Shilpa has already been made an approver no objection is raised on her behalf if she made a witness in the case. (emphasis applied)

[15]. However, notwithstanding the aforementioned stand taken by Shilpa, the learned Additional Sessions Judge turned down both the applications vide his impugned order dated July 13, 2004 after observing that (i) from the order dated 11.7.2001 passed by the Additional Chief Judicial Magistrate, it is difficult to make out that accused Shilpa was 'declared an approver'; (ii) the order dated 11.7.2001 merely says that 'it is a fit case' for granting pardon to accused Shilpa which is not sufficient to 'declare her' as 'an approver' and a clear order 'declaring her' to be 'an approver' was required to be passed; (iii) the 'acceptance of tender of pardon' by Shilpa is not available on record; (iv) Shilpa was not separated from rest of the accused and kept in judicial custody till her statement could be recorded as a prosecution witness; (v) Shilpa has been appearing as an 'accused' along with other two accused and has been charged-sheeted; and that (vi) during the pendency of the case for the last about four years, Shilpa was being shown as an accused which amounts to an "admission" on the part of the prosecution that she is an 'accused' only, especially when the prosecution has failed to explain as to why necessary steps Crl. Revision No. 1616 of 2004 ( 10 )

pursuant to the order dated 11.7.2001 passed by the Additional Chief Judicial Magistrate, Gurdaspur, were not taken?

[16]. On an indepth scrutiny of the entire material on record, coupled with the legal position, it stands crystalized that none of the reasons assigned by the learned Additional Sessions Judge can stand the test of judicial scrutiny.

Once the application moved by Shilpa herself was considered and accepted by the learned Additional Chief Judicial Magistrate by passing a reasoned order thereby deciding to tender pardon to her which offer, in turn, was recorded to have been accepted by her, there remained nothing to be performed to "declare" her an 'approver'. The order dated 11.7.2001 passed by the Additional Chief Judicial Magistrate is absolute and fully in consonance with the requirements of Section 306 Cr.P.C. except that after tendering her pardon, Shilpa should have been kept in judicial custody till her statement as a 'prosecution witness' is recorded in the main trial. However, in this regard, the learned Additional Sessions Judge appears to have overlooked sub-section (4)(b) of Section 306 in terms whereof she was to be detained in custody only if she was not on bail. It is not disputed by the Learned Counsel for the parties that Shilpa had been subsequently released on bail, therefore, the question of her retention in judicial custody did not arise.

[17]. So far as treating Shilpa as an accused and charge-sheeting her or permitting her to cross-examine some of the prosecution witness is concerned, it is true that once pardon had been tendered and accepted by Shilpa, she could Crl. Revision No. 1616 of 2004 ( 11 )

not have been treated as an accused, but then who is to be blamed for it? It is a well known principle that an act of a court prejudices none. The prosecution is no exception.

[18]. Further, the learned Additional Sessions Judge ought to have been apprised of the legislative object and intent behind section 307 Cr.P.C. while the objection of inordinate delay in moving the complainant's/prosecution's application was being considered. It will be profitable to extract Section 307 Cr.P.C., which reads as follows:-

"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." (emphasis applied) [19]. It goes without saying that though in the present case, Shilpa has not been tendered pardon under Section 307 Cr.P.C. which operates at a post- committal stage, however, the legislative intent that 'pardon' can be tendered "at any time after commitment of a case but before judgment is passed", was indicative enough to guide that mere delay is no ground to discard the proceedings which have already been concluded under section 306 Cr.P.C. In fact, no occasion should have arisen for the complainant to come forward and move these applications as it was obligatory upon the learned trial court itself to Crl. Revision No. 1616 of 2004 ( 12 )

proceed in the matter after taking cognizance of the proceedings held under section 306 Cr.P.C. before the case was committed to it.

[20]. The scope of Sections 306 and 307 Cr.P.C. has been very well explained by their Lordships of the Supreme Court in Narayan Chetanram Chaudhary and another v. State of Maharashtra, 2000 SCC (Crl.) 1546, holding that:-

"27. There is no legal obligation on the trial court or a right in favour of the accused to insist for compliance with the requirement of Section 306(4) Cr.P.C.. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to compliance with the condition specified in sub-section (1) of Section 306. The law mandates the satisfaction of the court granting pardon, that the accused would make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the trial court. The trial court, in this case has been taken all precautions in complying with the provisions of Section 306(1) before tendering pardon to the accused Raju, who later appeared as PW2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of Crl. Revision No. 1616 of 2004 ( 13 )

PW2."

[21]. In Suresh Chandra Bahari v. State of Bihar, 1994 Crl.L.J. 3271, the Apex Court, in the context of the statement as a prosecution witness of an 'approver' who has already been released on bail, observed as follows:- "34..... The dominant object of requiring an approver to be detained in custody until the direction of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime to whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from the custody. It is for these reasons that clause (b) of Section 306(4) casts a duty on the Court to keep the approver under detention till the determination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior Court, but such a release would not have any effect on the validity of the pardon once validly granted to an approver." (emphasis applied) [22]. Interestingly and in all fairness to learned counsel for Shilpa, he has taken a total somersault to her previous stand and has contended that now she Crl. Revision No. 1616 of 2004 ( 14 )

cannot be treated as an 'approver'. He has placed reliance upon the Apex Court judgment in the case of State (Delhi Admn.) v. Jagjit Singh, AIR 1989 SC 598.

He has also been supported by learned counsel for the other accused, who too has referred to a Division Bench judgment of the Rajasthan High Court in the case of Shakoor and another v. State of Rajasthan, 2004(2) RCR (Crl.) 224.

[23]. In Jagjit Singh's case (supra), while dealing with a contention as if the 'grant of pardon' is a contract between the State and the person to whom pardon is granted, the Apex Court turned down the same and observed as follows:-

"8..... Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof. It is because of this mandate, the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the Trial Court...." (emphasis applied)

These observations, thus, nowhere support the contention now sought to be raised on behalf of Shilpa. Similarly, in Shakoor's case (supra), the Rajasthan High Court held and rightly so that, "once an accused is granted Crl. Revision No. 1616 of 2004 ( 15 )

pardon, he becomes a prosecution witness and cannot be shown as an accused". However, the facts and circumstances of the case in hand are totally distinguishable.

[24]. For the reasons aforementioned, this revision petition is allowed, the impugned order dated 13.7.2004 is set aside and the application dated 5.3.2004 moved by the complainant through the prosecution, is allowed to the extent that learned Additional Sessions Judge, Fast Track Court, Gurdaspur is directed to record statement of Shilpa as a 'prosecution witness' by treating her to be 'an approver' and thereafter to take necessary follow up action in accordance with law and to conclude the trial proceedings on or before 31st December, 2005. The original records be sent back to the court concerned.

13.9.2005 ( SURYA KANT )

ritu/kadyan JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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