2020 (6) TMI 216 - HC - Money Laundering

Court dismisses premature petition seeking pardon revocation without approver's testimony. Emphasizes statutory compliance.

Directorate Of Enforcement Versus Rajiv Saxena

The court dismissed the petition seeking revocation of pardon, ruling it premature as the approver's statement under Section 306(4) was not recorded. ... Money Laundering - interplay between Section 306, and Section 308, of the Code of Criminal Procedure, 1973 - revocation of the tender of pardon - HELD THAT:- The Certificate, of the Public Prosecutor, in the present case, does not allege that, before the Court, the respondent concealed anything essential, or gave false evidence. In fact, a holistic reading of the application, filed by the petitioner before the learned Special Judge, reveals that the grievance of the petitioner is, essentially, that the respondent has not cooperated during investigation, and has withheld material in his possession. Mr. Handoo is right when he contends that non-co-operation, during investigation, is not one of the circumstances contemplated, by Section 308 (1), as justifying issuance of certificate by the Public Prosecutor. Quite obviously, this is because the condition, whereunder pardon is granted to the accomplice, is candour before the court, and not candour before the investigating officer. Non-cooperation with the investigative process, therefore, is irrelevant, insofar as Section 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 order, the petitioner has been compelled to use the evidence of an untrustworthy witness. Legally, too, this apprehension cannot sustain. Before the recording of his statement under Section 306 (4) of the Cr PC, the application, of the petitioner, as preferred before him, was not maintainable - the issuance of certificate, by the Public Prosecutor, under Section 308 (1), Cr PC, had to be necessarily preceded by the recording of the statement of the approver, under Section 306 (4). Petition dismissed. Issues Involved:1. Interplay between Section 306 and Section 308 of the Code of Criminal Procedure, 1973 (Cr PC).2. Validity and timing of revocation of pardon granted under Section 306.3. Role and authority of the Public Prosecutor in issuing certificates under Section 308(1).4. Examination of the approver under Section 306(4) as a mandatory prerequisite.5. Legal consequences of non-compliance with the conditions of pardon.Detailed Analysis:1. Interplay between Section 306 and Section 308 of the Cr PC:The case revolves around the interpretation and application of Sections 306 and 308 of the Cr PC. Section 306 deals with the tender of pardon to an accomplice, while Section 308 addresses the trial of a person who does not comply with the conditions of such pardon. The judgment underscores that the statutory scheme of these sections forms a clear, cohesive, and coherent progression, which must be followed meticulously.2. Validity and Timing of Revocation of Pardon:The petitioner sought revocation of the pardon granted to the respondent, arguing that the respondent had not complied with the conditions of the pardon. The court held that the application for revocation was premature as the respondent's statement under Section 306(4) had not been recorded. The court emphasized that the examination of the approver under Section 306(4) is mandatory and must precede any certificate issued by the Public Prosecutor under Section 308(1). Therefore, the revocation of pardon could not be considered until this procedural step was completed.3. Role and Authority of the Public Prosecutor:The Public Prosecutor's certificate under Section 308(1) is crucial for revoking the pardon. The court clarified that this certificate must be based on the approver's testimony in court, not on their conduct during the investigation. The Public Prosecutor must certify that the approver has either concealed essential information or given false evidence during their examination in court. The court rejected the notion that the Public Prosecutor could issue such a certificate based on investigative findings alone.4. Examination of the Approver under Section 306(4):The court reiterated that the examination of the approver under Section 306(4) is a mandatory provision that serves to test whether the approver is abiding by the conditions of the pardon. This examination must occur before any steps are taken to revoke the pardon. The court cited several precedents, including the Supreme Court's decisions in Bipin Behari Sarkar v. State of West Bengal and Suresh Chandra Bahri v. State of Bihar, to support this interpretation.5. Legal Consequences of Non-Compliance with Conditions of Pardon:If the approver fails to comply with the conditions of the pardon by concealing essential facts or giving false evidence, the Public Prosecutor can issue a certificate under Section 308(1). This certificate results in the approver being tried as an accused for the original offence and any other related offences. However, such a certificate can only be issued based on the approver's court testimony, not investigative conduct. The court emphasized that the statutory scheme does not recognize the concept of 'revocation of pardon' based solely on investigative findings.Conclusion:The court dismissed the petition, affirming that the application for revocation of pardon was premature and not maintainable until the respondent's statement was recorded under Section 306(4). The judgment underscores the importance of adhering to the statutory scheme of Sections 306 and 308, emphasizing that the Public Prosecutor's certificate under Section 308(1) must be based on the approver's testimony in court. The court reserved liberty for the petitioner to re-approach at the appropriate stage.