TaxTMI 
TaxTMI 
TaxTMI 
2020 (6) TMI 216
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....ed 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 and to every other person concerned whether as an abett....
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....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. (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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....h 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 wilfully concealed the true facts of the case. He has further given false evidence to hide his culpability in the case and also made selective disclosures to shield other Accused. He is also in touch with other Accused persons to derail the investigation. 5. That in light of the s....
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....r 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 for revocation of pardon granted to respondent Rajiv Saxena, if so needed, at appropriate stage." (Emphasis supplied) 9. The present petition, at the instance of the Directorate of Enforcement (hereinafter referred to as "Enforcement Directorate"), seeks quashing of the aforesaid order, dated 5th March, 2020, passed by t....
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....08 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 Special Judge, as expressed in the impugned order, if accepted, would, learned ASG would seek to submit, do complete violence to Section 306 of the Cr PC, and would also reduce the certificate of the Public Prosecutor, to which Section 308 (1) accords pre-eminence, to a dead letter. 14. Learned ASG also sought to submit that the certif....
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...., 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 Prosecutor certifies that the approver has wilfully concealed any essential fact, or tendered false evidence, that, Mr. Handoo submits, would have to be during the course of proceedings in the Court, and not during the investigative process. The Public Prosecutor cannot, submits Mr. Handoo, "peep into" the investigation, and relies, for the purpo....
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....ved 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 said para, to the calling of the respondent as a witness, was because, in the facts of that case, the respondent had, in fact, been called as a witness. The Supreme Court did not, in the said para, according to the learned ASG, hold, as a principle of law, that the wilful concealment of essential facts, or giving false evidence, by the approver, had ne....
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....ring 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 offence in respect of which he had, earlier, been granted pardon, as well as for any other offence, of which he appears to have been guilty, and for giving false evidence (with leave of the High Court), albeit separately from the other accused. At such trial, the approver-turned-accused shall be entitled to plead compliance, on his part, with the conditions of....
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....son 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 the District Magistrate has been obtained to the exercise thereof. (1A) Every Magistrate who tenders a pardon under Sub-section (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record : Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free ....
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....ch 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 306 to 308 of the 1973 Cr PC, also stands recognized in Jagjit Singh and Abu Salem Abdul Kayyum Ansari. 24. Bipin Behari Sarkar, subjecting Sections 337 to 339 of the 1898 Cr PC to a close and searching scrutiny, holds thus (in para 7 of the report): "Section 339(1) of the Code provides that "where a pardon has been tendered under Section 337 or Section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either ....
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....nder 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, adopted the same view. As far back as in 1943, a learned Division Bench of the High Court of Sindh ruled, in Emperor v. Pir Imamshah AIR 1944 Sindh 184, thus: "In our view, then, the tender of pardon having once been made by the District Magistrate and accepted by the accused, the tender of pardon could not be withdrawn as the District Magistrate withdrew it. The accused should be examined as a witness in accordance with the provisions of Section 337 (2), Cr PC, and it will be for t....
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....ogic, 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 seems to reveal some degree of ambivalence, on the issue of whether it is necessary to examine the approver twice, first in the committing Court and, thereafter, in the Sessions Court. On the aspect that the obligation, to make full and true disclosure, could be cast on the approver only when he is lawfully called to tender evidence in court, be it before the committing court, or the Sessions Court, however, the decision appears to be clear and categorical. In fact, the Court clarifies that the very purpose of requiring examination,....
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....urther 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 1973 Cr PC [or Section 337 (2) of the 1898 Cr PC], is mandatory, has to precede issuance of certificate, by the Public Prosecutor under Section 308 (1) of the 1973 Cr PC [or Section 339 (1) of the 1898 Cr PC], and is intended to ascertain whether the approver has complied with the conditions of pardon, or has resorted to concealment of material fact, or tendering of false evidence. 29. I proceed, now, to advert to the three decisions, of the Supreme Court, on which, principally, arguments, before me, revolved, namely Jagjit Singh, Abu Salem Abdul Kayyum Ansari....
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....epted 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 Magistrate taking cognizance of the offence and in the subsequent trial, if any. It is therefore, a mandate of the provisions of the said Act to the prosecution to examine the approver to whom pardon has been granted as a witness both in the Committing Court as well as in the trial court. It does not matter whether the approver has resiled from his statement and has not made a full and true disclosure of whole of the circumstances within his knowledge relating to the offence so long as the Public Prosecutor does not certify that in his opinion the approver has either wilfull....
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.... 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 Public Prosecutor, in Jagjit Singh, had not issued the requisite certificate under Section 308 (1) of the Cr PC. These two circumstances, in his submission, clearly distinguish the case, at hand, from Jagjit Singh. In relying, blindly, on Jagjit Singh, without taking stock of these two vitally distinguishing circumstances, the learned Special Judge has, contends the learned ASG, materially erred. 33. To the extent of his contention that, in respect of the above two circumstances, the facts in Jagjit Singh are different from those in the present case, I find myself in agreement with ....
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....e 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 of the Supreme Court indicate that the examination of the approver, as a witness, by the prosecution, as well as the certification, by the Public prosecutor, regarding non-compliance, by the approver, of the conditions of pardon, are both essential precursors, to trial of the approver, under Section 308, in respect of the offence for which pardon was granted as well as in respect of other offences in which he may be involved. 35. In Abu Salem Abdul Kayyum Ansari, Respondent No. 3, before the Supreme Court, was granted pardon, by the Sessions Court, under Section 307, Cr PC, and made....
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.... 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 an accused, in respect of the offence for which pardon had been tendered to him, and any other offence, of which he appears to be guilty in connection with the same matter. He also becomes liable to be tried for the offence of giving false evidence, albeit with the sanction of the High Court. 38. The judgment in Abu Salem Abdul Kayyum Ansari goes on to reproduce para 7 of the report in Jagjit Singh, and return the following findings, in respect thereof (in para-21): "The above statement of law in Jagjit Singh [1989 Supp (2) SCC 770 : 1990 SCC (Cri) 133] cannot be understood as laying down that an....
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....he 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 the following findings which, in my opinion, practically clinch the controversy in issue before me: "A bare reading of clause (a) of sub-section (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to any one of the courts mentioned in clauses (i) or (ii) ....
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....rson 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 first being to test whether the approver is abiding by his undertaking - subject to which pardon was tendered to him - to make a full and true disclosure of all facts within his knowledge, and provided true evidence in respect thereof, and the second, so as to enable the accused to point out any inconsistencies, between the said statement and the subsequent evidence, of the approver, during trial, if any. With the second objective, we are not particularly concerned, in the present case; the first, however, is pivotal to the issue in controversy, as the Supreme Court has clarified, yet again, that examination of the approver, as....
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....ed 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 his evidence, as recorded during trial under Section 306 (4), and cannot relate to his conduct during investigation. Indeed, despite considerable research, I have been unable to come across a single instance, in any reported decision, in which the certificate of the Public Prosecutor, under Section 308 (1), is based on the conduct of the approver during investigation, or his response to queries put to him outside the Court. Nor has the learned ASG drawn my attention to any such decision, despite contending, emphatically, that Section 308 (1) did not specifically proscribe issuance of certificate, by the Public Prosecutor, regarding....
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....nt, 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 it necessary to examine the authority, of the Public Prosecutor, to "peep into" the investigation, and the evidence garnered therein. It is obviously not possible to hold that the Public Prosecutor should remain a stranger to the investigative process, which constitutes the terminus a quo, wherefrom the entire proceeding emanates. Suffice it, therefore, to state that the certificate, under Section 308 (1) of the Cr PC, to be issued by the Public Prosecutor, is required to be based on the examination, of the approver, under Section 306 (4), or any other evidence adduced by the approver during trial, whether prior to committal or thereafter.....
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....ection 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 pardon may be tendered, to the accomplice, "on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge..." It is obvious that Section 306 (1) has to be read as a single provision, and that different parts of the provision cannot conflict with each other. Where the purpose of tendering pardon is obtaining of the evidence of the person, by, and before, the Court, the "full and true disclosure", required to be made by the person, to whom pardon is being tendered, has also, necessarily, to be before the Court. The Chief Judicial Magistrate, or the Metropolitan Magistrate or the Magistrate of the first....
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....ssuance 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, under Section 308 (1), can be said to arise. 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. 53. 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 un....