1967 (9) TMI 154 - SC - Indian Laws

Supreme Court Validates Special Judge's Pardon Decision under Criminal Law Amendment Act

Pascal Fernandes Versus The State of Maharashtra and Ors.

The Supreme Court upheld the Special Judge's decision to tender a pardon to a co-accused under Section 8(2) of the Criminal Law Amendment Act, 1952, ... - Issues Involved:1. Legality of tendering pardon to a co-accused by the Special Judge under Section 8(2) of the Criminal Law Amendment Act, 1952.2. Whether the Special Judge can act suo motu in tendering pardon without a request from the prosecution.3. Proper exercise of discretion by the Special Judge in tendering pardon.4. Applicability of Section 540 of the Code of Criminal Procedure in the context of tendering pardon.Detailed Analysis:1. Legality of Tendering Pardon to a Co-Accused:The case discusses the legality of the Special Judge's decision to tender a pardon to a co-accused, Jagasia, under Section 8(2) of the Criminal Law Amendment Act, 1952. The appellant argued that the application for pardon, made after the framing of charges, was not legally tenable. The Court examined the statutory provisions, emphasizing that Section 8(2) allows the Special Judge to tender a pardon to any person supposed to have been directly or indirectly involved in an offense, on condition of making a full and true disclosure. The Court concluded that the Special Judge's action was within his jurisdiction and legally valid.2. Whether the Special Judge Can Act Suo Motu:The appellant contended that the Special Judge could not act suo motu in tendering pardon without a request from the prosecution. The Court analyzed the statutory language and found no provision requiring the Special Judge to be moved by the prosecution. It was noted that the Special Judge could consider an offer by an accused, as was the case with Jagasia. Therefore, the Court held that the Special Judge's action was not outside his jurisdiction, even if initiated suo motu.3. Proper Exercise of Discretion by the Special Judge:The appellant argued that the Special Judge did not exercise his discretion properly and that the pardon was prejudicial to the defense of other accused. The Court emphasized that the interests of the accused are as important as those of the prosecution. It stated that the Special Judge must know the nature of the evidence the person seeking pardon is likely to give, the nature of his complicity, and the degree of his culpability. The Court criticized the Special Judge for not making any effort to find out what Jagasia had to disclose and for not seeking the opinion of the prosecution before tendering the pardon. However, since the Public Prosecutor later supported the pardon, the Court dismissed the appeal but cautioned against such practices in the future.4. Applicability of Section 540 of the Code of Criminal Procedure:The appellant contended that Section 540 of the Code of Criminal Procedure, which allows the Court to summon material witnesses, should govern the tender of pardon. The Court rejected this argument, stating that Section 540 and Sections 337 and 338 of the Code, or Section 8(2) of the Criminal Law Amendment Act, are not to be read together. The considerations for summoning witnesses are different from those for tendering pardon. The Court clarified that Section 540 does not apply to the tender of pardon, which has its own set of considerations and procedures.Conclusion:The Supreme Court upheld the Special Judge's decision to tender a pardon to Jagasia, finding it within his jurisdiction and legally valid. However, the Court emphasized the need for the Special Judge to seek the prosecution's opinion before tendering pardon and criticized the practice of acting suo motu without proper consideration of the evidence and the interests of justice. The appeal was dismissed, but the judgment serves as a cautionary note for future cases involving the tender of pardon.