TaxTMI 
TaxTMI 
2011 (11) TMI 828
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....was turned down by the High Court by its order dated 30.8.2010. The main argument by the appellant in this case is that pardon could not be granted by the Special Court prior to the filing of the charge-sheet. 4. Certain facts which are relevant to decide this controversy may be recorded. 5. On 21.4.2005 the confessional statement of the Respondent No. 2 was recorded under Section 164 Code of Criminal Procedure. The said confessional statement of Respondent No. 2 recorded his involvement and the involvement of the Appellant in the incident. On considering the said statement, the prosecution formed an opinion that the evidence of PW-2 is of great value to the prosecution and thereafter on 3.7.2006 the prosecution moved an application before the Court of the Special Judge for grant of pardon to Respondent No. 2 so that Respondent No. 2 could be examined as an approver in the case against the Appellant. 6. Thereafter, by an order dated 17.7.2006, pardon was granted by the Special Court. 7. Mr. Sunil Kumar, learned Counsel for the Appellant mainly assailed the order granting pardon, inter- alia, on the ground that the Special Court has no jurisdiction and authority to do so....
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....ourt of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (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. 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....
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....ion 308 run as follows: 308. Trial of person not complying with conditions of pardon. (1) Where, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307, the Public Prosecutor certifies that in his opinion such person 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, and also for the offence of giving false evidence: Provided that such person shall not be tried jointly with any of the other accused: 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 ....
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....l follow the procedure in the Code for trial of warrant cases by the Magistrate. Learned counsel also submitted that pardon is to be granted by the Special Judge, under provision of Section 307 of the Code which is corresponding to Section 308 of the old Code. 19. Learned counsel also relied on a decision of this Court in State of U.P. v. Singhara Singh 1963 : AIR 1964 SC 358 (para 8 at page 361 of the report) in order to contend that the principles in Taylor v. Taylor (1876) 1 Ch. D. 426 must be followed in the instant case. The said principle stipulates that where a statute required the doing of a certain thing in a certain way, the thing must be done in that way or not at all. 20. Learned counsel also referred to the decision in the case of Queen Empress v. Batera and Ors. reported in Criminal Judgments No. 3 (Case No. 2838 of 1897) where the Court held that provision of Section 337 of the old Code must be strictly construed. 21. We are unable to appreciate the aforesaid contentions raised by the learned counsel. It goes without saying that under Section 5(2) of the P.C. Act the power of the Special Judge to grant pardon is an unfettered power subject to stipulation mad....
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....rposes of the Act and no further;... (Emphasis added) 25. Following the aforesaid well-settled principle, as we must, we hold that the deeming provision introduced in Section 5(2) of the P.C. Act is not for fettering the power of the Special Judge to grant pardon in terms of Section 306 of the Code. The purpose of introducing the deeming provision in Section 5(2) of the P.C. Act is manifest from the text of Section 5(2), namely, the same is introduced only for the purposes of Sub-Sections 1 to 5 of Section 308 of the Code and it is only for the said purpose that the sanction is deemed to have been tendered under Section 307 of the Code. 26. If this Court accepts the contention of learned counsel for the Appellant that the Special Judge under the P.C. Act has no power to grant the pardon under Section 306 of the Code in view of the deeming clause under Section 5(2) of the P.C. Act, that will amount to reading Section 5(2) of P.C. Act in a manner which is revolting to reason and by doing violence to the plain words of the statutes. 27. The contention of the learned counsel for the appellant cannot be accepted for other reasons also which are discussed hereinbe....
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....tions which fell for consideration in Pascal (supra) are: (a) the difference between Sections 337 and 338 of the old Code and Section 8(2) of the Criminal Law Amendment Act (b) that the power of Special Judge in tendering pardon under Section 8 (2) of the Criminal Law Amendment Act is limited to an application by the prosecution and the Special Judge cannot act suo motu (c) the further question was that the powers of the Special Judge under Section 8 (2) are circumscribed by considerations under Section 540 of the old Code and (d) the further contention was that Special Judge had not exercised his discretion properly in the case. 32. None of the above considerations are relevant in the present case. Therefore, the said decision does not render any assistance to the Appellant in connection with the points which have been urged on his behalf. 33. The learned counsel for the State relied on a three Judge Bench decision of this Court in the case of Harshad S. Mehta and Ors. v. State of Maharashtra reported in (2001) 8 SCC 257. In the case of Harshad Mehta (supra) this Court was considering the Special Court (Trial of Offences Relating to Transactions in Securities) Act and it is ....
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....s a court of original criminal jurisdiction and has all the powers of such a court under the Code including those of Sections 306 to 308. 38. If we may note, the Court reached the aforesaid conclusion in Harshad Mehta (supra) even though under the aforesaid Act there is no provision like Section 5(2) in the P.C. Act. 39. If we follow the ratio of Harshad Mehta (supra) to the interpretation of Section 5(2) of the P.C. Act, it is clear that the power to grant pardon under Section 306 of the Code has not been specifically denied. If it is not specifically denied, then as a court of original criminal jurisdiction the Special Court under P.C. Act has the power to grant pardon under Section 306 of the present Code. Any different interpretation will be contrary to the plain words of Section 306 of the Code and also the law laid down by this Court in Harshad Mehta (supra) on the principles decided in Antulay (supra). 40. Reference in this connection can also be made to the decision of the Supreme Court in the case of State of Tamil Nadu v. V. Krishnaswami Naidu and Anr., reported in (1979) 4 SCC 5. In that case the question was whether the Special Judge has the power of remand. Th....