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2020 (6) TMI 216
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....s, against the respondent (and others arraigned with him) indicated commission of offences under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "the PMLA"), ECIR No. 15/DLZO/2014 was also registered against, inter alia, the respondent, on 3rd July, 2014, by the Directorate of Enforcement (the petitioner herein). 3. Given the limited controversy before me, which is purely legal in nature and turns on the interpretation of Sections 306 and 308 of the Cr PC, it is not necessary to allude, to the allegations against the respondent, in any detail. Suffice it to state that an application was filed, by the respondent, under Section 306, Cr PC, for grant of pardon. The said application was allowed, by the learned Special Judge, CBI (hereinafter referred to as "the learned Special Judge"), vide a detailed order, dated 25th March, 2019, the operative para 21, whereof, reads thus: "In view of my aforesaid discussion, I thus allow the application moved by accused/applicant Rajiv Saxena seeking pardon and to make him an approver subject to his making full and true disclosure of whole of the circumstances as are within his knowledge relating to the offence a....
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....ted 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." "308. Trial of person not complying with the 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. ....
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....on of pardon". I shall deal with the said submission later in the course of this judgment. 6. Annexed, to the said application, was a "Certificate for revocation of pardon", by the learned Special Counsel appearing for the petitioner, which merits reproduction, in extenso, thus: "I, Davinder Pal Singh, aged about 51 years, S/o Sh. Dewan Singh, Special Counsel, Directorate of Enforcement, Office at R-1 Nehru enclave, New Delhi-110019, do hereby certify as under: 1. That the Applications seeking revocation of tender of pardon granted to Rajiv Saxena has been moved by the ED. The same may be read as a part and parcel of the instant certificate and are not repeated herein for the sake of brevity. 2. That I have perused the statement(s) of Rajiv Saxena and also perused the evidence on record. 3. That in my opinion, after due appreciation of the evidence and the perusal of the records of the case, it is clear beyond doubt that Rajiv Saxena has breached the terms of the tender of pardon granted vide order dated 25.03.2019. 4. That Rajiv Saxena has failed to disclose the full and true set of facts/circumstances in his knowledge and has wilful....
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....anting him pardon, he makes him liable to be tried as accused subject to the conditions as laid down in Section 308 Cr PC. In the judgment "State v. Jagjit Singh, 1989 Supp (2) SCC 770," it is observed that revocation of pardon can only be as per the procedure provided U/s 308 Cr PC which mandates that approver be examined in the Court before revoking the pardon. Thus it is clear that breach of the conditions of the order granting pardon has to be looked into after the approver is examined by the Session Court/Trial Court and Ld. PP files Certificate that approver has committed breach of the conditions on basis of which he was granted pardon. Section 308 Cr PC also lays down that opportunity has to be granted to the accused to defend himself that he has complied with the conditions on which he was granted pardon. Therefore,. 24. The contention of Ld. Counsel for ED that this Court can revoke the pardon granted to any person, at any stage, even before the approver is examined before Session Court/Trial Court, is without any merit. 25. The application filed by ED is premature and is liable to be dismissed. The Enforcement Directorate may move appropriate application....
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....ed could not satisfactorily demonstrate that he had complied with the conditions, subject to which pardon had been granted, the learned Trial Court was required, first, to decide this aspect of the matter. As such, submits the learned ASG, sufficient protection, for the approver, was available in the various sub-sections of Section 308 of the Cr PC. 12. Learned ASG submits, further, that the learned Special Judge erred, and fundamentally, in holding that the statement of the approver was required to be recorded, before deciding on the issue of revocation of the pardon extended to him. No such requirement, submits the learned ASG, is to be found in Section 308 of the Cr PC, and it was not permissible, therefore, for the learned Special Judge to engraft, by judicial fiat, a requirement which the statute did not contain. The learned Special Judge, in treating the application, of the petitioner, as "premature", on the premise that, prior to seeking revocation of pardon, the statement of the approver, to whom pardon had been extended, was required to be recorded has, therefore, in the submission of the learned ASG, gone wrong on facts as well as in law. 13. The view of the learned....
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....ch revocation could have been sought at all. 17. Drawing attention to sub-section (4) of Section 306, Mr. Handoo submits that the recording of the statement of the approver, consequent to grant of pardon under sub-section (1), is mandatory. No such statement, he points out, was ever recorded, from his client, after the grant of pardon, to him, on 25th March, 2019. The recording of such statement, submits Mr. Handoo, has necessarily to precede the issuance of certificate by the Public Prosecutor under Section 308 (1), and the certificate, itself, had necessarily to be based on the statement recorded under Section 306 (4). In other words, the "concealment" of something "essential", or the tendering of "false evidence", according to Mr. Handoo, has to be relatable to the statement of the approver, recorded under Section 306 (4), and not independent thereof. The stipulation, of the Public Prosecutor, being the person, designated to issue certificate under Section 308 (1), Mr. Handoo submits, underscores this position, as the Public prosecutor has nothing to do with the investigative process, and his role stands limited to the proceedings before the Court. If, therefore, the Public P....
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....ned ASG invited my attention to various paras of Jagjit Singh2, in order to demonstrate that, in fact, the said decision supported the case of the petitioner, and not that of the respondent. He also places especial reliance on the judgment of the High Court of Madras in In re. Arusami Goundan AIR 1959 Mad 274, which, in his submission, stood approved in Jagjit Singh. 19. The learned ASG submitted, further, that Abu Salem Abdul Kayyum Ansari clearly decided the issue in controversy in the favour of the petitioner. He points out that, in the said case, the order of the High Court, allowing the respondents to continue as a witness, was set aside by the Supreme Court. Proceeding therefrom, the learned ASG submits that, once the Public Prosecutor certified, under Section 308 (1) of the Cr PC, that the accused was giving false information, it would be incongruous to allow him to continue as a witness for the prosecution. He points out that, in para 21 of the report in Abu Salem Abdul Kayyum Ansari, Jagjit Singh stood explained and clarified. The learned ASG also invited my attention to para 17 of the report in Abu Salem Abdul Kayyum Ansari4, and submits that the reference, in the s....
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....ance of the offence, as well as in the subsequent trial, if any. Thereafter, the Magistrate taking cognizance is required, under Section 306 (5), to commit the offence for trial, to the jurisdictional Court, or to the Chief Judicial Magistrate, as the case may be. Section 307 empowers the Court, to which the offence is committed under Section 306 (5) to, during the course of trial, tender pardon to any person, supposed to have been directly or indirectly concerned in, or privy to, the offence being tried, so as to obtain the evidence of such person. Admittedly, Section 307 does not impact the issue before me. Section 308 deals with non-compliance with the conditions, subject to which pardon is granted under Section 306 (1). Section 308 (1) empowers the Public Prosecutor to certify that, in his opinion, an approver - i.e., an accused to whom pardon has been extended under Section 306 or Section 307 - has wilfully concealed something essential, or given false evidence and has, thereby, failed to comply with the condition, subject to which pardon was granted to him. On such certificate being issued by the Public Prosecutor, the approver concerned becomes liable to be tried for the off....
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....fence under any of the following sections of the Indian Penal Code, namely, Sections 161, 165, 165A, 216A, 369, 401, 435 and 477A, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or enquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full 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; Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of th....
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....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: Provided that such person shall not be tried jointly with any of the other accused, and that he shall be entitled to plead at such trial that he has complied with the conditions upon which such tender was made; in which case it shall be for the prosecution to prove that such conditions have not been complied with. (2) The statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial. (3) No prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court." 23. A comparative study of Sections 337 to 339 of the 1898 Cr PC, vis-à-vis Sections 306 to 308 of the 1973 Cr PC, reveal that they are, in all relevant respects, in pari materia. That the law, as enunciated in the context of Sections 337 to 339 of the 1898 Cr PC would also apply, mutatis mutandis, to Sections ....
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.... wilfully concealed anything essential or had given false evidence and had not complied with the condition on which the tender was made." (Italics and underscoring supplied) The italicised and underscored words, from the afore-extracted passage from Bipin Behari Sarkar clearly indicate that, in the scheme of Sections 337 to 339 of the 1898 Cr PC, it was only after the accused-turned-approver (consequent to his having been granted tender of pardon) was examined as a witness under Section 337 (2), that the Public Prosecutor could certify, under Section 339 (1), that he had concealed material facts, or given false evidence. Extrapolating the ratio to the 1973 Cr PC, it would appear that it is only after the accused-turned-approver is examined as a witness, under Section 306 (4), that the Public Prosecutor could certify, under Section 308 (1), that he had concealed material facts, or given false evidence. Per corollary, it would be premature to seek for revocation, of the pardon extended to the approver, before his statement was recorded under Section 306 (4), Cr PC - which is what the impugned order holds. 25. Various High Courts, in the context of the 1898 Cr PC, in fact, ad....
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....alled upon to give evidence touching the matter; it may be in the committing court, or, it may be in the sessions court. But, the obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence. If at any stage he either wilfully conceals material particulars or gives false evidence he would have failed to comply with the conditions' on which the pardon was tendered to him and thereby incurred its forfeiture. Neither as a matter of reason or logic, nor as a matter of statutory interpretation can it be said that Section 339 (1) is dependent on or connected with Section 337(2) in the sense that the approver must be examined both in the committing court and the Sessions Court before it can be held that he has forfeited his pardon. It is sufficient if he fails to conform to the conditions on which the pardon has Been granted to him at either stage. As explained in the earliest of the cases we have referred to where a pardon has been tendered and accepted, the utmost good faith must be kept on both sides." (Italics and underscoring supplied) A reading of the above passages, from Arusami Goundan s....
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....4) in the Court of the Magistrate; taking cognizance is made compulsory. ***** 12. Examination of the approver under Section 306(4) before the Magistrate taking cognizance and his subsequent examination at the trial are entirely for different purposes. His examination before the Magistrate is not to treat it as evidence to consider the guilt of innocence of the accused, but only for the purpose I have mentioned earlier. Such examination will be even before process is issued to the accused. At that stage no enquiry even is involved and further the accused will be nowhere in the picture. There is no question of the accused being permitted to cross-examine the approver at that stage. Accused has no right to participate in that examination. But his examination in the subsequent trial is for the evidence in the case. Necessarily and naturally the accused has a right to cross-examine him at that stage because without cross-examining and challenging his veracity the evidence cannot be used against the accused." (Italics and underscoring supplied) 28. The authorities, cited hereinabove, all indicate that examination, of the approver, under Section 306 (4) of the 197....
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....nder Section 164 of the Code of Criminal Procedure was not made by the respondent, Jagjit Singh voluntarily but it was obtained under coercion by the police. It has also been contended that he resiled from his statements in the court of the Committing Magistrate and he has not accepted the pardon granted to him by the Magistrate. He should be arrayed as an accused in the case FIR No. 238 of 1985 and should be tried as an accused along with other accused in the said case. This contention is not tenable inasmuch as the pardon granted to the respondent, Jagjit Singh was accepted by him and other approver, Gurvinder Singh who were examined as PW 1 and PW 2 in the court of the Committing Magistrate. These approvers, of course, resiled from their statement in the court of the Committing Magistrate. It has therefore, been submitted that the prosecution cannot examine him as a witness in the said case as he has cast away the pardon granted to him. The submission, in our considered opinion, is not tenable inasmuch as sub-section (4) of Section 306 of Code of Criminal Procedure clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magi....
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.... of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences. In these circumstances, the question of casting away the pardon granted to an approver and his claim not to be examined by the prosecution as a witness before the trial court is without any substance." 32. The learned ASG sought to distinguish the decision in Jagjit Singh, and also criticised the learned Special Judge for having, in his submission, picked a sentence out of the said judgment, oblivious of the context in which it was rendered. The learned ASJ has submitted - and, it must be accepted, unexceptionably - that a judgment has to be read as a whole, and in the context of the fact situation obtaining before the Court, and cannot be relied upon, for precedential worth, by extracting, therefrom, a sentence here nor there. The learned ASG pointed out that the controversy before the Supreme Court, in Jagjit Singh was whether, merely because Jagjit Singh had resiled from the statement, rendered by him, consequent to grant of pardon, he stood converted, ipso facto, into an accused, from an approver. Moreover, points out learned ASG, the Publ....
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.... the Supreme Court, by limiting the declaration by the factual matrix in which it was made. What has, in every case, to be examined, is, rather, whether the factual difference(s), between the earlier pronouncement, and the case at hand is, or are, such as to affect the precedential applicability, of the former, on the latter. 34. In paras 7 and 8 of Jagjit Singh, while examining whether the Court could withdraw the pardon granted to the approver, or the approver could cast away the pardon granted him, and answering the issue in the negative, the Supreme Court held that, even if the approver were to resile from his statement, he, nevertheless, has to be examined as a witness, and it is only when the Public Prosecutor certifies that the approver has not complied with the conditions of tender of pardon, by concealing something essential or giving false evidence, that the approver could be tried under Section 308 of the Cr PC. Though the judgment, it is true, does not say, in so many words, that the certificate of the Public Prosecutor, under Section 308 (1), has to be based on the evidence, recorded by the Committing Court, of the approver, a contextual reading of the observations ....
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.... of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 Cr PC to that effect, the protection given to him is lifted." (Emphasis supplied) This passage, therefore, echoes the view, in Bipin Behari Sarkar, that concealment of anything material, or giving false evidence, by an approver, would arise "when he is called as a witness for the prosecution". The approver, when so called, is under a duty to make a full and true disclosure of the circumstances within his knowledge, concerning the offence, and with respect to every other person so concerned. If he suppresses anything essential, within his knowledge, concerning the offence, or, by giving false evidence, fails to comply with the condition, subject to which pardon was tendered by him, the Public Prosecutor so certifies, under Section 308 (1), whereupon the approver becomes....
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....rdon was made. Here, again, calling of the accomplice-turned-approver, as a witness for the prosecution, between the tendering of pardon to the accomplice (thereby making him an approver), and the issuance of Certificate, by the Public Prosecutor, is regarded as inevitable. 39. The facts, in Suresh Chandra Bahri, are extremely involved, and it is not necessary to be make reference thereto, in order to extract, from the said judgment, the applicable ratio decidendi, insofar as the present case is concerned. Suffice it to state that, in the said case, after tender of pardon to the approver Ram Sagar Vishwakarma, the learned Magistrate, who took cognizance and committed the offence for trial to the Court of Sessions, did not record his statement under Section 306 (4) of the Cr PC. The learned Sessions Court remanded the matter, to the learned Magistrate, to record the statement of the approver, under the said provision. The Supreme Court was, inter alia, seized with the issue of whether such a procedure was permissible, and answered it, ultimately, in the affirmative (in paras 31 to 33 of the report). In the process of doing so, the Supreme Court, in para 30 of the report, returned....
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.... approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial. It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable. Further clause (b) of sub-section (4) of Section 306 of the Code will also go to show that it mandates that a person who has accepted a tender of pardon shall, unless he is already on bail be detained in custody until the termination of the trial. We have, therefore, also to see whether in the instant case these two mandatory provisions were complied with or not and if the same were not complied with, what is the effect of such a non-compliance on the trial?" (Italics and underscoring supplied) 40. Para 30 of the report in Suresh Chandra Bahri, therefore, holds that the examination of the approver, as witness, under Section 306 (4), Cr PC, serves two objectives, the fi....
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....e High Court). The manner in which such separate trial of the approver is to proceed, is provided in the succeeding sub-sections of Section 308 of the Cr PC, and the controversy before me does not require me to travel into that terrain, as the impugned order, of the learned Special Judge, has rejected the application, of the petitioner, on the ground that, as the approver had not been examined as a witness, no question of revocation of the pardon, granted to him, arises, and has reserved liberty, with the petitioner, to re-approach at an appropriate stage. 42. Ex facie, the view adopted by the learned Special Judge, as reflected in paras 23 to 25 of the impugned order, dated 5th March, 2020, is eminently in accordance with the law laid down in the aforenoted decisions, as well as the statutory scheme of Sections 306 and 308 of the Cr PC, and does not merit any interference. 43. I am also in agreement, with Mr. Handoo, that the empowerment, of the Public Prosecutor, with the authority to issue certificate, under Section 308 (1), is also indicative of the fact that the concealment of essential facts, or tendering of false evidence, by the approver, has necessarily to relate to ....
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....revoking pardon", before any such statement is recorded, cannot, therefore, arise. 45. The mere fact that the Public Prosecutor has issued a certificate, under Section 308 (1) of the Cr PC, even before the evidence of the approver was recorded under Section 306 (4) cannot, in my view, make any difference to this factual, or legal position. In my considered opinion, the certificate, dated 18th October, 2019, of the Public Prosecutor, issued in the present case, was an exercise in futility, inasmuch as it was not preceded by the recording of the evidence of the approver, under Section 306 (4), Cr PC. In the absence of any such statement, or evidence, it was not open to the Public Prosecutor to certify, regarding compliance, by the approver, of the conditions of pardon. The certificate issued by the Public Prosecutor in the present case, effectively, therefore, placed the cart before the horse. 46. The learned Special Judge cannot, therefore, be faulted, in any manner, in rejecting the application, for "revocation of pardon", as filed by the petitioner before him, as premature, as no evidence, of the approver, had been recorded under Section 306 (4), Cr PC. 47. I do not deem ....
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....ng to indicate that the "concealment", of "anything essential" could not be extended to include the investigative process. Though the submission, semantically, may be attractive, viewed schematically, it fails to impress. When one reads Section 308 (1) in juxtaposition, and in conjunction, with 306 (1) and (4), it is apparent that the "concealment", as well as the "giving false evidence", to which Section 308 (1) alludes, both related to evidence before the Court. 50. That the above interpretation is correct, also becomes apparent when one reads Section 306 (1), itself. In fact, Section 306 (1), even by itself, aids in the interpretation of Section 308 (1). Section 306 (1) opens by clarifying that the purpose of granting tenure of pardon, to an accomplice-accused, case "obtaining (of his) evidence". The obtaining of evidence has to be by the Magistrate, Judicial Magistrate, or Magistrate of the first class, tendering pardon; not by the investigating officer. When, and where, does the Chief Judicial Magistrate, the Metropolitan Magistrate, or the Magistrate of the first class, obtain evidence? Obviously, and axiomatically, during trial. Section 306 (1) goes on to stipulate that p....
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....of the approver, under Section 306 (1). 52. 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. So long as the approver does not conceal anything essential before the Court, and does not give false evidence before the Court, no occasion, for issuance of any certificate, by the Public Prosecutor, und....